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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


SELECTION  OF  CASES 


ON 


MUNICIPAL  CORPORATIONS 


BY 


JOSEPH   HENRY   BEALE 

CAKTEK  PROFESSOR  OF  GENERAL  JURISPRCDENCE  IN 
HARVARD  UNIVERSITY 


CAMBRIDGE 

THE   HARVARD  LAW   REVIEW   PUBLISHING  ASSOCIATION 

1911 


Copyright,  1911, 
Bt  Joseph  H.  Beale 


\ 


THE  UNIVERSITY  PRESS,  CAMBRIDGE,  U.  S.  A. 


PREFACE 

In  1898  Professor  Jeremiah  Smith  published  a  short  collection  of 
"Cases  on  Selected  Topics  in  the  Law  of  Municipal  Corporations," 
with  special  reference  to  the  wants  of  his  classes,  where  the  time 
allotted  for  the  subject  did  not  exceed  ten  lectures.  The  growing  im- 
portance of  the  subject  has  made  it  wise  to  increase  the  time  devoted 
to  study  of  the  subject  in  many  schools,  and  the  time  now  commonly 
allotted  to  it  is  from  thirty  to  forty  lectures.  This  has  made  it  desira- 
ble to  prepare  a  case-book  to  cover  the  subject  more  fully  than  was 
possible  in  Professor  Smith's  book,  and  the  task  of  preparation  has 
fallen  on  the  present  editor. 

The  cases  in  the  earlier  book  were  so  admirably  selected  that  it 
would  have  been  folly  to  make  a  new  selection.  Professor  Smith 
placed  them  all  at  the  service  of  the  present  editor,  but  preferred  that 
his  own  name  should  not  appear  on  the  title-page.  This  collection, 
therefore,  which  ought  to  appear  as  a  second  edition  of  his  book,  or 
at  least  as  a  joint  production,  must  purport  to  be  the  work  of  the 
undersigned ;  who  takes  occasion  here  to  say,  that  of  the  678  pages 
of  cases  here  collected,  260  are  taken  without  change,  or  with  unim- 
portant changes  of  arrangement,  from  the  earlier  collection,  and  to 
express  his  indebtedness  for  that  fact,  and  for  the  even  greater  assist- 
ance he  has  derived  from  Professor  Smith's  learning  and  interest  in 

the  subject. 

JOSEPH  H.  BEALE. 

Cambridge,  December  1,  1911. 


G673G0 


TABLE   OF   CONTENTS 

Page 

Table  of  Cases vii 

Chapter  I.    The  Nature  of  Municipal  Corporations: 

Section  1.    Distinction  between  Municipal  Corporations  and 

other  Corporations 1 

Section  2.    Functions  of  Municipal  Corporations    ....  13 

Chapter  II.    External  Constitution  : 

Section  1.    Creation,  Alteration,  and  Dissolution  ....  18 

Section  2.    Legislative  Control 82 

Chapter  III.    Internal  Constitution  : 

Section  1.    Organization 148 

Section  2.    Departments,     (a)  Legislative 175 

(b)  Administrative 203 

Sections.   Officers 211 

Chapter  IV.   Powers  of  a  INIunicipal  Corporation  : 

Section  1.    General  Principles 240 

Section  2.    Legislative  Power 252 

Section  3.    Police  Power 277 

Section  4.   Power  to  Tax 298 

Sections.    Power  to  P^xpend  Money 317 

Section  6.    Power  to  Contract 356 

Section  7.    Power    to   Acquire,    Manage,    and    Dispose    of 

Property 408 

Chapter  V.    Liability: 

Section  1.    Liability  on  Contracts 474 

Section  2.    Liability  for  Torts,     (a)  General  Principles  of 

Liability 530 

(6)    Negligence    in    Executing   Governmental 

Functions 569 

(c)  Negligence    in     the    Performance    of    a 
Municipal  Function 601 

(d)  Negligence    in    the    Performance    of    a 
Commercial  Function 632 

Chapter  VI.    Remedies 653 

Index 679 


TABLE    OF    CASES 

REPRINTED  OR  CITED. 


Cases  printed  in  small  capitals  are  printed  at  large  in  the  text;  other  cases  are  cited  in  the 
text  or  notes.  "Where  a  case  printed  at  large  is  also  cited  elsewhere,  the  page  first  given  refers  to 
the  place  where  it  is  printed  at  large. 


Adams  v.  Robinson,  1  Pick.  461  172 
V.  Wiscasset  Bank,  1  Greenl. 

361  536,  577 

Addyston  Pipe  &  Steel  Company 

V.  Corey,  194  Pa.  41  406 

Agawam  v.  Hampden,  130  Mass. 

528  117 

Agawam  National  Bank  v.  In- 

H.ABITANTS    OF    SoUTH    HaDLEY, 

128  Mass.  503  515,  516 

Ah  Lee,  In  re,  6  Saw^-  410  230 

Akron  v.  McComb,  18  Ohio,  229  576 
Alamango  v.  Board  of  Supervisors 

of  Albany  County,  25  Hun,  551 


Allegheny,  City  of,  v.  Milkoh,  159 

Pa.  St.  411 
Allen  V.  Drew,  44  Vt.  174 

V.  Jay,  60  Me.  124 

V.  Taunton,  19  Pick.  485 


594, 
595 

302 
266 
420 
246 

7 


Allor  V.  Auditors,  43  Mich.  76 
Alton,  City  of,  v.  MuUedy,  21  Ih. 

76  471 

Amy  V.  Sehna,  77  Ala.  103  67 

V.  Watertown,  130  U.  S.  301      75 

Andover  v.  Grafton,  7  N.  H.  298  369 
Andrews  v.  Portland,  79  Me.  484  237 
Anon.,  1  Pick.  196  172 

Anthony  v.  Adams,  1  Met.  (Mass.) 

284  532,  246,  576,  652 
V.  Jasper  County,  101  U.  S. 

693  494,  511 

Application  of  Mayor,  etc.,  99  N.  Y. 

569  415 

Argenti  v.  San  Francisco,  16  Cal. 

255  515,  518,  645 

Ariniond  v.  Green  Bay,  etc.  Co., 

31  Wis.  316  550 

Arnett  v.  State,  168  Ind.  180  100 
Arnold  v.  Hawkins,  95  Mo.  569  400 
Ash  V.  People,  11  Mich.  347  315 

Ashby  V.  Wellington,  8  Pick.  524  24 
Ashley  v.  City  op  Port  Huron, 

35  Mich.  296  648,  7,  637 


Askew  V.  Hale,  54  Ala.  639  11 

Askins  v.  Com.,  1  Duv.  275  60 

Atkin  v.  Kansas,  191  U.  S.  207      130, 

137 
Atkms  V.  Phillips,  26  Fla.  281  188 

V.  Randolph,  31  Vt.  226    114,  122 

V.  Sawyer,  1  Pick.  354  172 


Atlantic  Bank  v.  Merchants'  Bank, 

10  Gray,  532  514 

Attorney-General  v.  Campbell,  191 

Mass.  497  203 

V.  Councilmen,  58  Mich.  213       7 

V.  Detroit,  29  Mich.  108      7,  353 

V.  Drohan,  169  Mass.  534        213 

V.  Eau  Clake,  37  Wis.  490        420 

V.  Guardians  of  the  Poor  of 

Southampton,  17  Sim.  6  321 

V.  Johnson,  63  N.  H.  622  224 

V.   Life  &  Fire   Ins.   Co.,   9 

Paige,  470  356 

V.  Locke,  3  AtkjTis,  164  658 

V.  Mayor  of  Norwich,  2  Myl. 

&  Cr.  406  324 

V.  Norwich,  16  Sim.  225  321 

V.  Remick,  73  N.  H.  25  203 

V.  Williams,  174  Mass.  476       276 

Attorney-General  ex  rel.   Ma- 

GuiRE  V.  Wayne  Circuit  Judge, 

157  Mich.  615  350 

Atwater  v.  Trustees  of  Village  of 

Canandaigija,  124  N.  Y.  602  614 
Aurora  Water  Co.  v.  Aurora, 

129  Mo.  540  249 
Austin  V.  Murray,  16  Pick.  121  277 
V.  Tennessee,  179  U.  S.  343      274 

B. 

Babbitt  v.  Savoy,  3  Cush.  530  347 

Bachelder  v.  Epping,  28  N.  H.  354  327 
Badger  v.   Inlet   Drainage   Dist., 

141  111.  540  73 

V.  U.  S.,  93  U.  S.  599  168 

BAiLfiY  V.  Mayor  of  New  York, 

3  Hill,  531  13,  114,  122,  124,  459, 
673,  576,  624,  626 


VIU 


TABLE    OF    CASES. 


Baily  v.  Philadelphia,  184  Pa. 

594  453 

Baker  v.  Cushman,  127  Mass.  105    202 

V.  Johnson,  21  Mich.  319  303 

Baltimore  v.  Baltimore  T.  &  G. 

Co.,  166  U.  S.  673  314 

Baltimore,  Mayor  of,  v.  State,  15 

Md.  376  30,  49,  100,  123,  127 

Bancroft   v.    Lynnfield,    18   Pick. 

536  347 

Bangs  V.  Snow,  1  Mass.  181  241 

Bank  v.  Chillicothe,  7  Ohio,  part 

II,  31  366 

V.  Grace,  102  N.  Y.  313  423 

V.  Kennedy,  167  U.  S.  362        525 

Bank  of  Columbia  v.  Patterson,  7 

Cranch,  299  533 

Bank  of  Rome  v.  Village  of  Rome, 

IS  N.  Y.  38  120 

Baptist  So.  V.  Candia,  2  N.  H.  20  24 
Barbier  v.  Connolly,  113  U.  S.  27  274 
Barbour  v.  Ellsworth,  47  Me.  294  583 
Barkley  v.  Levee  Comrs.,  93  U.  S. 

258  78 

Barnard  v.  Knox  County,   105 

Mo.  382  396 

Barnard  &  Co.  v.  Knox  Co.,   37 

Fed.  Rep.  563  398 

Barnes  v.  District  of  Columbia,  91 

U.  S.  540  5,  144,  539 

Barnett  v.  Denison,  145  U.  S.  135  132 
Barney  v.  Lowell,  98  Mass.  570       556, 

631 
Barney  D.   B.   Co.   v.   Mayor  of 

N.  Y.,  40  Fed.  50  144 

Barrett  v.  Bodie,  158  111.  479  76 

Barron  v.  Detroit,  94  Mich.  601  635 
Bartholomew  v.  Jackson,  20  Johns. 

25  331 

Barton  v.  City  of  Syracuse,  36 

N.  Y.  .54  611,  549 

Bates  V.  Bassett,  60  Vt.  535     420,  426 

V.  Gregory,  89  Cal.  387  78 

V.   Westborough,    151   Mass. 

174  550 

Baxter  v.  The  Winooski  Turnpike, 

22  Vt.  123  578 

Beach  v.  Haynes,  12  Vt.  15  444,  445 
Beardsley  v.  Smith,  16  Conn.  368 

654,  655 
Beaty   v.   Lessee   of    Knowler,   4 

Peters,  152  242 

Becker  v.  I^a  Crosse,  99  Wis.  414    415 

V.  Water  Works,  79  Iowa,  419,  419 

Beckwith  v.  City  of  Racine,  7  Biss. 

142  51 

Beers  v.   Phoenix   Glass  Co.,   14 

Barb.  358  362 

Beir  v.  Cooke,  37  Hun,  38  297 

Belcher  v.  Farrar,  8  Allen,  325  276 

Bell  V.  City  of  Platteville,  71  Wis. 

139  465 

Belmont  v.   New    England    Brick 

Co.,  190  Mass.  442  276 


Beloit  V.  Morgan,  7  Wall.  619  28 

Bennett    v.    New    Bedford,     110 

Mass.  433  202 

Benoit  v.  Conway,  10  Allen,  528  514 
Benson  v.  Mayor,  10  Barb.  223        114 

V.  People,  10  Col.  App.  175      219 

Benton  v.  Trustees  of  Boston  City 

Hospital,  140  Mass.  13  589,  594 

Berlin  v.  Gorham,  34  N.  H.  266  18 
Bessonies  v.  City  of  Indianapohs, 

71  Ind.  189  272 

Beverley    v.    Lincoln    Gas    Light 

and    Coke    Co.,   6    Adolph.    & 

Ellis,  829  533 

Biddeford  v.  Yates,  104  Me.  506  467 
Bigelow  v.  Hillman,  37  Me.  52  177 
Bigelow  V.  Perth  Amboy,  1  Dutch. 

297  362 

V.  Randolph,  14  Gray,  541      536, 

610,  651 
Biggs  v.  McBride,  17  Or.  640  219 

Bill  Posting  Sign  Co.  v.  Atlantic 

City,  71  N.  J.  L.  72  293 

Bills  V.  City  of  Goshen,  117  Ind. 

221  183,  272 

BisseU  V.  Jeffersonville,  24  How. 

287  483,  492 

Black  V.  McGonigle,  103  Mo.  192  400 
Blackmer  v.  Hildreth,  181  Mass. 

29  203 

Blackwell's  Case,  1  Vernon,  152  658 
Blanchard  v.  BisseU,  11  Oh.  St.  96  50 
Bloom  V.  Xenia,  32  Oh.  St.  461  187 
Bloomfield  v.  Glen  Ridge,  54 

N.  J.  Eq.  276  31 

Bloomington,  City  of,  v.  Latham, 

142  111.  462  266 

Bly  V.  Edison  Elec.  111.   Co.,    172 

N.  Y.  1  297 

Board  v.  Auditors,  68  Mich.  576  7 

V.  Board,  30  W.  Va.  424  33 

V.  Patterson,  56  111.  Ill  444 

Board  of  Comrs.  v.  Lucas,  93  U.  S. 

108  124 

Board  of  Health  v.  City  of  East 

Saginaw,  45  Mich.  257  33 

Board  of  Park  Comrs.  v.  Common 

Council,  28  Mich.  228  459,  638 

V.  Printz,  127  Ky.  470  592 

Board  of  School  Comrs.  v.  Cen- 
ter Township,  143  Ind.  391  36 
Board  of  Supers.,  Cayuga  Co.  v. 

State,  153  N.  Y.  279  345 

Bohan  v.  Port  Jervis   Gas  Light 

Co.,  122  N.  Y.  18  297 

Bolton  V.  Crowther,  4  Dowl.  &  Ryl. 

195  14 

Book  V.  Earl,  87  Mo.  246  398 

Booth  V.  Town  of  Woodbury,  32 

Conn.  118  116,  119 

Borough  of  Henderson  v.  County 

of  Sibley,  28  Minn.  519  426 

Borough  of   Millerstown  v.   Bell, 

123  Pa.  151  288 


TABLE    OF   CASES. 


IX 


Boston  V.  Schaffer,  9  Pick.  415  258 
Boughton  V.  Pensacola,  93  U.  S. 

266  79 

Bowden  v.  Kansas  City,  69  Kan. 

587  548 

Bowdoinham  v.  Richmond,  6  Me. 

112  28 

Bowman  v.  Walker,  2  M'Lean,  376  370 
Brady  v.  Insurance  Co.,  11  Mich. 

425  281 

V.  Lowell,  3  Cush.  121     537,    577 

V.  Mayor,  etc.  of  New  York, 

20  N.  Y.  312  378 

Brenham,    City   of,   v.   German 

American  Bank,  144  U.  S.  173  371 
Breninger  v.  Belvidere,  44  N.  J.  L. 

350  266 

Brewer  Brick  Co.  v.  Brewer,  62  Me. 

62  330 

Brewis  v.   City  of   Duluth,   3 

McCr.  219  52 

Brewster  v.  City  of  Syracuse,  19 

N.  Y.  116  344 

Bridge  Co.  v.  East  Hartford,   16 

Conn.  172  23 

Brinkmeyer  v.  Evansville,  29  Ind. 

187  619 

Bristol  V.  New  Chester,  3  N.  H. 

521  24 

Britton  v.  Maj^or,  21  How.  Pr.  251  114 
Broadway  Railroad  Co.  v.  Mayor, 

49  Hun,  129  ^  309 

Brockman  v.    Creston,    79    Iowa, 

587  419 

Brodbine   v.    Revere,    182    Mass. 

598  ■_     _  276 

Bronson  ?;.  Kinzie,  1  Howard,  319  661 
Brooke  v.  City,  162  Pa.  123  334,  423 
Brooklyn  v.  Nodine,  26  Hun,  512  276 
Brooklyn  Park  Com.  v.  Armstrong. 

45  N.  Y.  234  50 

Brooks  v.  Brooklyn,  146  la.  136  417 
Broughton  v.  Pensacola,  93  U.  S. 

266  47,  59,  66,  68,  71 

BrowTi  V.  Board  of  Education,  103 

Cal.  531  645 
V.  Mayor,  etc.  of  N.  Y.,  63 

N.  Y.  239  344 

V.  Vinalhaven,  65  Me.  402       583 

v.  Winnisimmet  Co.,  11  Allen, 

326  465 

Browning  v.  Springfield,  17  111.  143  609 
Bryan   v.    City    of    Chester,    212 

Penn.  259  293 

Bryant  v.   City  of  St.    Paul,    33 

Minn.  289  542,  631 

V.  Westbrook,  86  Me.  450        647 

Buch  V.  Company,  69  N.  H.  257  546 
Buchanan  v.  Litchfield,  102  U.  S. 

278  374,  493,  500,  506,  520,  521 

Buck  v.  Eureka,  109  Cal.  504  228 
Bulger  V.  Eden,  82  Me.  352     546,  650, 

651 
Burnett  v.  Markley,  23  Ore.  436      395 


Burns  v.  Clarion  County,  62  Penn. 

St.  425 
Burt  V.  Winona,   etc.   R.   R.,   31 

Minn.  472 
Bush  V.  Bd.  of  Supers.,  Orange  Co., 

159  N.  Y.  212 
Butler  V.  Charlestown,  7  Gray,  12 
V.  Detroit,  43  Mich.  552 


Butman  v.  Newton,  179  Mass.  1 
BuTTRicK  V.  City  of  Lowell,  1 

Allen,  172 
Butz  V.  City  of  Muscatine,  8  Wall. 

575 
Buxton  V.  Chesterfield,  69  N.  H. 


24 

230 

345 
331 

7 
588 

580 

49 

331 

617 


357 

Byrnes  v.  City  of  Cohoes,  67  N.  Y. 
204 

C. 

Cain  V.  Brown,  111  Mich.  657  73 
V.  City  of  Syracuse,  95  N.  Y. 

161  613,  617 

CaUanan  v.  Gilman,  107  N.  Y.  360 

429,  431 
CalweU  V.  City  of  Boone,  51  la.  687  544 
Camden  v.  Camden  Village  Corp., 

77  Me.  530  465,  650 

Campbell  v.  Cincinnati,  49  Oh.  St. 

463  185 

V.  Seaman,  63  N.  Y.  568  297 


Cannon  v.  New  Orleans,  20  Wall. 

577  124 

Cape  May  Street  Railway  Co.  v. 

Cape  May,  59  N.  J.  L.  396  309 

Carleton  v.  People,  10  Mich.  250  231 
Carr  v.  Hilton,  1  Curt.  C.  C.  390  370 
Carroll   v.   Lessee  of   Carroll,    16 

How.  275  492 

Carroll  County  v.  Smith,  111  U.  S. 

556  504 

Carson  v.   McPhetridge,    15  Ind. 

331  159 

Cavanaugh  v.  Boston,  139  Mass. 

426  560 

Cawley  v.  People,  95  111.  249  177 

Cedar  Rapids,  In  re,  85  la.  39  423 

Cedar  Rapids  Water  Co.  v.  Cedar 

Rapids,  118  la.  2.34  419 

Central  Bridge  Corp.  v.  Lowell, 

15  Gray,  106  148 

Central  Land  Co.  v.  Bayonne,  27 

Vroom,  297  263 

Chaffee  County  v.  Potter,  142  U.  S. 

355         497," 498,  499,  504,  505,  506, 

507,  508 
Chalk  V.  TVTiite,  4  Wash.  156  340 

Chal.stran  v.  Board  op  Educa- 
tion, 244  111.  470  74 
Chambers  v.  City  of  St.  Louis,  29 

Mo.  543  411 

Chandler  v.  Boston,  112  Mass. 

200  19,  50 

Chapman    v.    Douglass    Co.,    107 

U.  S.  348  527,  528,  564 


TABLE   OF  CASES. 


Chapman,  Matter  of,  57  App.  Div. 

582  343 

Chapman,   Matter   of,   v.   New- 
York,  168  N.  Y.  81  342 
Charlotte,    etc.    Raihoad    Co.    v. 

Gibbs,  142  U.  S.  386  309 

Chase    V.   Merrunack    Banli,    19 

Pick.  564  535 

Chedsey  v.  Canton,  17  Conn.  475  578 
Chelsea  Sav.   Bank  v.   Ironwood, 

130  Fed.  410  529 

Cheney  v.  Coughlin,  201  Mass.  204  200 
Cherokee  v.  Perkins,  118  la.  405  419 
Chicago  V.  Gage,  95  111.  621  177 

V.  Seben,  165  111.  371  548 

Chicago  v.  Union  Traction  Co., 

199  111.  259  304 

Chicago  City  v.  Robbins,  2  Black, 

418  539 

Chicago,  City  of,  v.  Burtice,  24  III. 

489  204 
V.  Gunning  System,  214  111. 

628  294 

V.  O'Brien,  111  111.  532  307 

V.  Rumpff,  45  111.  90  265 

V.  Town  of  Cicero,   210  111. 


290 


V.  Trotter,  136  lU.  430 


73,  75 
268,  272, 
275 


Co.    V. 


300 


Chicago    General    Ry 

Chicago,  176  111.  2.53 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Mil- 
waukee, 97  Wis.  418  314 
Chidsey  v.  Canton,  17  Conn.  475  117, 

537 
Child  V.  Boston,  4  Allen,  41 
Chilvers  v.  People,  11  Mich.  43 
Chipman  v.  Palmer,  77  N.  Y.  51 
Chope  V.  City  of  Eureka,  78  Cal. 

588 
Chi-isty  V.  Pridgeon,  4  Wall.  196 
Cicero   Lumber   Co.   v.   Town  of 

Cicero,  176  111.  9  272,  275 

Cicero,  Town  of,  v.  City  of  Chicago, 

182  111.  301 
Cincinnati,   City  of,  v.  Cameron, 

33  Ohio  St.  336 
City  V.  Schoenbusch,  95  Mo.  618 
City,  In  re,  v.  McNab,  67  Ala.  588  420 
City,  etc.  Railroad  Co.  v.  Savan- 
nah, 77  Ga.  731 
City  Ry.  Co.  v.  Citizens'  St.  Ry. 

Co.,  166  U.  S.  558 
Claflin  V.  Hopkinton,  4  Gray,  502 
Claiborne  County  v.  Brooks,  111 

U.  S.  400  135,  373 

Clair  V.  Manchester,  72  N.  H.  231    545 

Claridge  v.  Evel>Ti,  5  B.  &  Aid.  81     160 

Clark   V.    City   of   Rochester,    24 

Barb.  446 

V.  Crane,  5  Mich.  151 

V.  Des  Moines,  19  la.  199 

V.  Easton,  146  Mass.  43 

V.  Manchester,  62  N.  II.  577 


316 
612 

644 
539 


75 

463 
251 


309 

437 
327 


383 
185 
419 
213 
640 


Clark  V.  Mayor,  etc.  of  Washing- 
ton, 12  Wheat.  40  533 

V.  School  Dist.,  3  R.  I.  199      362 

V.  South  Bend,  85  Ind.  276      274 

V.  Waltham,  128  Mass.  567      631 

Clayton  v.  City  of  Henderson,  44 

S.  W.  667  564 

Clayton   v.   Hallett,    30   Colo. 

231  408 

Cleburne,    City    of,    v.    Railroad 

Company,  66  Tex.  461  372 

Clinton  v.  Railroad,  24  la.  475         25, 

132 
Coates  V.  Campbell,  37  Minn.  498  420 
Codman  v.  Evans,  7  Allen,  431  557 
Coffin  V.  City  Council,  26  la.  515       385 

V.  Nantucket,  5  Cush.  269        275 

Cogswell  V.  N.  Y.,  N.  H.  &  Hart- 
ford R.  R.  Co.,  103  N.  Y.  10  297 
Cohens  v.  Virginia,  6  WTieat.  264  492 
Colchester  v.  Scaber,  3  Burr.  1866    47, 

67 
Coldwater  v.  Tucker,  36  Mich.  474  34 
Coleraine  v.  Bell,  9  Met.  499  515 

Collins  V.  Greenfield,    172   Mass. 

78  589,  643,  651 

V.  Holyoke,  146  Mass.  298      472 

CoLOMA,  Town  of,  v.  Eaves,  92 

U.  S.  484  477,  488,  492,  501,  506 
Commissioners  v.  Detroit,  28  Mich. 

228  7 

V.  Duckett,  20  Md.  468  610 

V.  Intoxicating  Liquors,  115 

Mass.  153  281 

V.  Lucas,  93  U.  S.  108  42,  44 

V.  Wilkins,  121  Mass.  356         282 

Commonwealth  v.  Abrahams,  156 

Mass.  57  275 
V.    Boston   Advertising   Co., 

188  Mass.  348  292 
V.  City  of  Philadelphia,  132 

Pa.  St.  288  463 

V.  Cluley,  56  Pa.  270  159 

V.  Cutter,  156  Mass.  52  589 

V.  Dearborn,  15  Mass.  125       212 

V.  Elhs,  158  Mass.  555  275 

V.  Hubley,  172  Mass.  58  274 

V.  Johnson,  2  Binney,  275        658 

V.  Kingsbury,  199  Mass.  542     276 

Commonwealth  v.  Leech,  44  Pa. 

332  154 

Commonwealth  v.  McCloskey,  2 

Rawle,  374  93 

V.  McComb,  56  Pa.  436      96,  230 

Commonw^ealth     v.     Maletsky, 

203  Mass.  241  273 

V.  MoiR,  199  Pa.  534  92 

Commonwealth    v.    Mulhall,    162 

Mass.  496  274,  275 

V.  Packard,  185  Mass.  64  274 

V.  Page,  155  ]\Iass.  227  275 

V.  Parker,  2  Pick.  550  172 

V.  Parks,  155  Mass.  531  274 

f    Philadelphia,   Harrisburg, 


TABLE  OF   CASES. 


XI 


&  Pittsburg  Railroad  Co.,   23 
Pa.  Super.  Ct.  205  288,  289 

Commonwealth    v.    Plaisted,    148 
Mass.  375        100,  101,  116,  127,  274 

V.  Rawson,  183  Mass.  491        276 

V.  Read,  2  Ashm.  261        159,  176 

V.  Roswell,  173  Mass.  119        275 

V.  Roxbury,  9  Gray,  451  535 

V.  Sisson,  189  Mass.  247  274 

V.  Smith,  132  Mass.  289  203 

V.  Smith,  10  All.  448  129 

V.  Staples,  19  Mass.  384  275 

Commonwealth    v.    Stodder,    2 

Cash.  562  270 

Commonwealth    v.    Swasey,    133 
Mass.  538  213 

V.  Tuckerman,  10  Gray,  173     514 

V.  Turner,  1  Gush.  493  275 

V.  Walton,  182  Pa.  373  454 

V.  Weil,  165  Pa.  284  96 

V.  Wilder,  127  Mass.  1  649 

Commonwealth,  ex  rel.  City  of 

Philadelphia  Police  Pension 

Fund  Association  v.  Walton, 

182  Pa.  373  333 

Commonwealth,  ex  rel.  Kelly  v. 

Pittsburg,  183  Pa.  202  335 

Concord  v.  Boscawen,  17  N.  H.  465  327 

V.  Robinson,  121  U.  S.  165       373 

Conduit  V.  Jersey  City,  17  Vroom, 

157  621,  631 
Conldin   v.   Thompson,    29   Barb. 

218  597 

Conner  v.  Nevada,  188  Mo.  148  408 
ConnoUey   v.    Mayor  of   City   of 

Nash\'ille,  100  Tenn.  262  592 

Conrad  v.  Ithaca,  16  N.  Y.  158       609, 

144 
Cook  V.  Milwaukee,  9  Law  Reg. 

N.  S.  263  610 

Cook  County  v.  City  of  Chicago, 

158  m.  524  304 
Cooley  V.  Freeholders  of  Essex,  27 

N.  J.  415  606,  621 

V.  Gramdlle,  10  Cush.  56    327,  329 

Coolidge  v.  Brookline,  114  Mass. 

592  319,  327,  337 

Coonley  v.  City  of  Albany,   132 

N.  Y.  145  614 

Cooper  V.  Detroit,  42  Mich.  584  638 
Copley  V.  Grover  &  Baker  Sewing 

Machine  Co.,  2  Woods,  494  563 

Cordon  v.  Miller,  11  Mich.  581  281 
Cornell  v.  Guilford,  1  Denio,  510  518 
Corrigan  v.  Gage,  68  Mo.  541  266 

Couglilan  V.  Cambridge,  166  Mass. 

268  633 

CouGHLiN  V.  McElroy,  74  Conn. 

397  236 

V.  McElroy,  72  Conn.  99  236 

Council  Bluffs,  City  of,  v.  Stewart, 

51  la.  385  399 

County  Com'rs  of  Anne  Arundel 

V.  Duckett,  20  Md.  468  606 


Covington  v.  Kentucky,  173  U.  S. 

231  43,  44 

Cowley  V.  Mayor  of  Sunderland,  6 

H.  &  N.  565  125 

Coy.zi.  The  City  Council  of  Lyons, 

17  la.  1  385,  658 

Craft  v.  South  Boston  R.  R., 

150  Mass.  207  516 

Crawford  v.  City  of  Topeka,  51 

Kan.  756  293 
V.    Village    of    Delaware,    7 

Oh.  St.  459  555 

Crofut  V.  City,  65  Conn.  294  427 

Crook  V.  People,  106  111.  237  77 

Crosby  v.  Grant,  36  N.  H.  273  369 
Crossett  v.  Janesville,  28  Wis.  420  642 
Crowley   v.   Rochester   Fireworks 

Co.,  183  N.  Y.  353  598 

Cuddon  v.  Eastwick,:1  Salk.  192      1, 

67 
Culver  V.  Streator,  130  111.  238  571 
Cumberland  v.  WiUison,  50  Md. 

138  558 

Cunljffe  V.  The  Mayor,  etc.  of  Al- 
bany, 2  Barb.  190  574 
Cunningham  v.  Seattle,  40  Wash. 

59  561 

Cturan  v.  Boston,  151  Mass.  505     125, 

594,  595,  630 
Currie  v.  Southern  Pac.  Co.,  21 

Or.  566  197 

Cusliing    V.    Stoughton,    6    Cush. 

389  581 

D. 

Dalton,  In  re,  61  Kan.  257  133 

Dan\'ille,  City  of,  v.  Hatcher,  44 

5.  E.  723  283 
Darley  v.  Queen,  12  CI.  &  F.  520  221 
Darlington  v.  Mayor  of  New 

York,  31  N.  Y.  164     108,  25,  624, 

626,  637 
Dartmouth  CoUege  v.  Woodward, 

4  WTieat.  694  88 

Davenport  v.  Ruckman,  37  N.  Y. 

560  144 

Davenport,  City  of,  v.  Peoria  M. 

6.  F.  I.  Co.,  17  la.  276  60 
Daviess  County  v.  Dickinson,  117 

U.  S.  657  374 

Davis  v.  City  of  Des  Moines, 

71  la.  500  402,  405 

Da\as  V.  City  of  Jackson,  61  Mich. 

530  636,  637 
V.  City  of  Litchfield,  145  111. 

313  266 

Davoust  v.  Alameda,  149  Cal.  69  643 
Day  V.  Greene,  4  Cush.  433  275 

D'Amico    V.    Boston,    176    Mass. 

599  588 

Deane   v.    Randolph,    132    Mass. 

475  556,  588 

Deansville  Cemetery  Assoc,  In  re, 

66  N.  Y.  569  129 


xu 


TABLE    OF   GASES. 


Decatur,   City  of,   v.   Vermillion, 

77  111.  315  235 

Defer  v.  Detroit,  67  Mich.  346  7 

Delmonico  v.  The  Mayor,  etc.  of 

New  York,  1  Sandford,  222  576 

De    Motte  v.   Valparaiso,    161 

Ind.  319  451 

Denton  v.  Jackson,  2  Johns.  Ch. 

320  24 

Denver  v.  Hallett,  34  Col.  393  424 

Depere,  Towti  of,  v.  Town  of  Belle- 

vue,  31  Wis.  120  28,  46 

Deshong  v.  City  of  New  York,  176 

N.  Y.  475  432 

Detroit,  City  of,  v.  Beckman,  34 

Mich.  125  549,  636,  637 

Detroit,  City  of,  v.  Blackeby, 

21  Mich.  84  603,  7,  537,  583 

Detroit  v.  Corey,  9  Mich.  165        7,  88, 

638 
Detroit    v.    Detroit    Citizens' 

Street    Railway,    184    U.    S. 

378  427,  436 

Detroit  r.  Detroit  &  H.  P.  Road, 

43  Mich.  140  124 

V.  Putnam,  45  Mich.  263  7 

Deveraux  v.  City  of  Brownsville, 

29  Fed.  742  69 

Devine   v.    National    Wall   Paper 

Company,  95  App.  Div.  194  432 
Dewey  v.  Des  Momes,  173  U.  S. 

193  45 

Diamond  v.  City  of  Mankato,  89 

Minn.  48  426 

Dickinson  v.   Boston,    188   Mass. 

595  588 

V.  Conway,  12  Allen,  487  514 

Dill  V.  Wareham,  7  Met.  438  514,  515 
Diver  v.  Savings  Bank,  126  la.  691  423 
Dixon  County  v.  Field,  111  U.  S. 

83  497,  499,  502,  505,  506,  507 

Dodge  V.  People,  113  111.  491  77 

V.  Woolsey,  18  Howard,  331     662 

Doe  V.  Burnliam,  31  N.  H.  426  369 
Doherty  v.  Braintree,   148  Mass. 

495  588 

Dolan  V.  Mayor,  68  N.  Y.  274  238 

Dominic  v.  Sayre,  3  Sandford,  555  662 
Donnaher  v.  The  State,  8  Smed.  & 

M.  649  277 

Donovan  v.  The  Mayor,  etc.,  33 

N. Y.  291  519 

Dorothy  v.  Pierce,  27  Ore.  373  395 
Dorsey  v.  Smvth,  28  Cal.  21  237 

Dorton  v.  Hearn,  67  Mo.  301  420 

Doughten  v.  Camden,  72  N.J.  L. 

451  300 

Dow  V.  Wakefield,  103  Mass.  267  117 
Downes  v.  Hopkinton,  67   N.  H. 

456  545 

Downing  v.  Citv  of  Milton  vale,  36 

Kan.  740       "  198 

Drainage    District,  Comrs.  of,    v. 

Kelsey,  120  lU.  482  73 


Drew  V.  Davis,  10  Vt.  506  327 

Drv  Dock  Railroad  Co.  v.  Mayor, 
47  Hun,  221  309 

DUFFIELD  l).  WiLLIAMSPORT  ScHOOL 

District,  162  Pa.  476  278 

Duggan   V.    Peabody,    187    Mass. 

349  588,  589,  651 

Dullam  V.  Wilson,  53  Mich.  392  218 
Duncan  v.  LjTichburg,  34  S.  E.  964  414 
Dunham  v.  Rochester,  5  Cow.  462    210, 

259,  266 
Dumnore's  Appeal,  52  Pa.  St.,  430 

30,49 
Dunn  V.  Framingham,  132  Mass. 

436  349 


E. 


654 
331 


Eames  v.  Savage,  77  Me.  212 
Earle  v.  Coburn,  130  Mass.  596 
Eastern   Counties   R.    R.    Co.    v. 

Hawkes,  38  E.  L.  &  E.  8 
East  Hartford  v.  Hartford  Bridge 

Co.,  10  How.  511 
Eastman  v.  Meredith,  36  N.  H. 
284  571,  323,  536,  558,  594,  605, 

627,  647,  651 
East  Oaldand  v.  Skinner,  94  U.  S, 

255 
East  St.  Louis  v.  Wehrung,  50  111 

28 
Eaton  V.  B.  C.  &  M.  R.  R.  Co.,  51 

N.  H.  504  550 

Eckerson  v.  Des  Moines,  137  la.  452  ijOl 

626 

68 

167 

68 


362 

42 


374 

276 


Edgerly  v.  Concord,  62  N.  H.  8 
Edwards  v.  Kearzey,  96  U.  S.  595 

V.  U.  S.,  103  U.  S.  471 

V.  Williamson,  70  Ala.  145 


Ehrgott  V.  Mayor  of  New  York, 

96  N.  Y.  264  34,  144 

Elkhart  v.  Murray,  165  Ind.  304  271 
Elliott  v.  Chicago,  48  111.  293  203 
EUiott  V.  Detroit,  121  Mich.  611  153 
Elmendorf  v.   Taylor,   10  ^^^leat. 

152  539 

Elmore  v.   Drainage  Comrs.,   135 

111.  269  73 

Emeric  v.  Oilman,  10  Cal.  408  671,  672 
Emery  v.  Lowell,  104  Mass.  13  538 
Ensign  v.  Supervisors  of  Livingston 

County,  25  Hun,  20 
Equitable  Cooperative   Foundery 

Co.  V.  Hersee,  103  N.  Y.  25 
Erie  v.  Schwingle,  22  Penn.  St.  388' 
Erving  v.  Mayor,  etc.  of  New  York, 

131  N.  Y.  133 
Esberg  Cigar  Co.  v.  Portland,  34 

Or.  282  645,  646 

Essex  Board  v.  Skinkle,  140  U.  S. 

334 
Evans  v.  City  of  Trenton,  24  N.  J. 

L.  764 
Evansville,  City  of,  v.  State,  118 

Ind. 426  '        100 


594 

461 
609 

379 


44 
235 


TABLE    OF    CASES. 


Xlll 


Fairbanks  v.  Fitchburg,  132  Mass. 
.     42 

Fake  v.  \Miipple,  39  Barb.  339 
Fallon,  Matter  of,  28  :\Iisc.  Rep. 

748 
Farm\-iUe,  TowTi  of,  v.  Walker,  43 

S.  E.  558 
Farnsworth  Co.  v.  Rand,  65  Me. 

19 
Farnum  v.  Concord,  2  N.  H.  392 


472 
328 

343 

283 

330 

536, 

578 


Farquharson  v.  Yeargin,  24  Wash. 

549  408 

Fay  V.  Prentice,  1  C.  B.  828  557 

Fayette\dlle  v.  Carter,  52  .-Vrk.  301  311 
Federal  St.  Ry.  Co.  v.  Allegheny, 

14  Pittsb.  L.  J.  (N.  S.)  2.59  302 

Fidehtv  (The),  16  Blatchf.  569        568, 

569 
Fifth  Avenue  Coach  Co.  v.  City  of 

New  York,  194  X.  Y.  19  296 

Finch  V.  Board,  etc.,  30  Oh.  St. 

37  11 

Fire  Department  v.  Kip,  10  Wend. 

267  19 

First  Parish  in  Sutton  v.  Cole,  3 

Pick.  232  535 

Fisher  v.  Boston,  104  Mass.  87  619 
Fisher  Co.  v.  Woods,  187  N.  Y.  90  294 
Fisk,  Ex  parte,  72  Cal.  125  281 

Flanders    v.   Franklin,  70    X.    H. 

168  545 

Flint,     etc.    Plank-Road    Co.    v. 

Woodhidl,  25  :Mich.  99  355 

Flood  V.  Leahy,  183  :\Iass.  232  347, 349 
Floyd  Acceptance  Cases,  7  Wall. 

666  487 

Fors>-th  V.  Hammond,  166  U.  S. 

506  42,  153 

Fort  Smith  v.  Hunt,  72  Ark.  556  311 
Fort  Wayne  v.  Lake   Shore  & 

Michigan  Southern  Railway, 

132  Ind.  558  443,  452 

Fosdick  V.  SchaU,  99  U.  S.  253  530 

Fourth  School  District  v.  Wood, 

13  Mass.  193  2 

Fowler  v.  Bebee,  9  Mass.  231  231 

Fox  V.  Philadelphia,  208  Pa.  127  580 
Franlv,  Ex  parte,  52  Cal.  606  185 

Freeholders  of  Sussex  v.  Strader, 

3  Harr.  (18  X.  J.)  108  606,  621 

Freeport  Water  Company  v.  Free- 
port  City,  180  U.  S.  587  428 
French  v.  Benton,  44  X.  H.  28         331 

V.  Quincy,  3  Allen,  9  420,  465, 633, 

648 
Friend  v.  Gilbert,  108  Mass.  408  344 
Frost  V.  Behnont,  6  Allen,  152  327 

Fuller  V.  Groton,  11  Gray,  340  347 
Fulton,  City  of,  v.  Xorthern  Illi- 
nois College,  158  111.  333  304 
Furman  v.  Xichol,  8  Wall.  44  49 


G. 


Galway  Election  Cases,  2  Moak, 

Eng.  Cas.  714 
Cans  V.  State,  10  Oh.  St.  238 
Garrison  v.  Howe,  17  N.  Y.  458 
Garvej'  v.  Long  Island  R.  R.  Co., 

159  X.  Y.  323 
Gay  i'.  Cadby,  2  C.  P.  D.  391 
Gas  Companj',  The,  v.  San  Fran- 
cisco, 9  Cal.  453 
Gaskill  V.  Dudley,  6  Met.  546 
Geneva,  Town  of,  v.  Cole,  61  111. 

397 
George  X.  Fletcher  &  Sons  v.  Al- 
pena Circuit  Judge,  136  Mich. 
511 
German-American   Sa\'ings  Bank 

V.  Citv  of  Spokane,  49  Pac.  542 
Gibb  V.  Washington,  1  :Mc.\11.  430 
Gibbs  V.  Manchester,  73  N.  H.  265 

217, 
GiLBOY  V.  City  of  Detroit,  115 
Mich.  121  582, 

Gillett  V.  Logan  County,  67  111.  256 
Oilman  v.  Laconia,  55  X.  H.  1.30 
Gihnore  v.  Lems,  12  Ohio,  281 
Giozza  V.  Tiernan,  148  U.  S.  657 
Girard  v.  PhiladelpWa,  7  Wall.  1 
Glaessner  v.   Anheuser  Busch  B. 

Assn.,  100  Mo.  508 
Glidden  v.  Unity,  33  X.  H.  571 
Godd.ard,  Petitioner,  16  Pick.  504 
Gooch  V.  Exeter,  70  X\  H.  413 
Gorham  v.  Gross,  125  Mass.  232 
GosUng  V.  Veley,  4  H.  L.  Cas.  679 

Goss  V.  Greenleaf,  98  Me.  436 
Gould  V.  Boston,  120  Mass.  300 
Gove  V.  Epping,  41  X.  H.  539 
Graham  v.  City  of  Greenville,  67 
Tex.  62 

V.  Roberts,  200  Mass.  152 


Granby  v.  Thurston,  23  Conn.  419 

Grant  v.  City  of  Davenport,  36 
la.  396  385, 

Grant  Co.  v.  Lake  Co.,  17  Or.  453 
Gray  v.  Mount,  45  la.  591 

V.  Portland  Bank,  3  Mass.  364 

Gre.\t  F.\lls  Bank  v.  ToT\T>r  of 

Farmington,  41  X.  H.  32 
Great  Western  RaUwav  v.  Rush- 
out,  5  DeG.  &  Sm.  290 
Green,  Matter  of,  166  X.  Y.  485 
Green  v.  Bancroft,  75  X.  H.  204 

V.  Biddle,  8  Wheaton,  92 

V.  Lake,  60  Miss.  451 

V.  Weller,  32  Miss.  630 


160 
220 
383 

297 
589 

518 
535 

230 


352 

403 
230 

218 

543 
471 
545 
235 
119 
66 

430 
369 
298 
100 
558 
160, 
176 
469 
631 
439 

70 
154 
24, 
117 

407 
398 
423 
533 

368 

321 
345 
218 
661 
274 
198 


Green  Bay  &  ^I.  Canal  Co.  v.  Kau- 
kauna  Water-Power  Co.,  70  Wis. 
635  465,  466 

Greenough  v.  Wakefield,  127  Mass. 
275  327 


XIV 


TABLE    OF   CASES. 


Greenwoods.  Freight  Co.,  105  U.  S. 

13  78 

Gridley  v.  City  of  Bloomington,  88 

111.  554  307 

Griffin  v.  Mayor,  etc.  of  N.  Y.,  9 

N.  Y.  456  613 

Grimes  v.  Keene,  52  N.  H.  330  545 
Grogan  v.  San  Francisco,  18  Cal. 

590  124 

Guilford  v.  Supervisors,  13  N.  Y. 

143  30,  343 

Guliok  V.  New,  14  Ind.  97  159 

Gundling  v.   Cliicago,    177  U.   S. 

183  267 

Gunnison  County  Commission- 
ers V.  Rollins,  r73  U.  S.  255  499 
GusHEE  V.  New  York,  42  App. 

Div.  37  457 

Gustafson  v.  Hamm,  56  Minn.  334    430 

H. 

Hackettstown,     TowTsr    of,     v. 

SWACKHAMER,  37  N.  J.  L.  191  363 
Hafford  v.  City  of  New  Bedford, 

16  Gray,  297  540,  581,  589,  619 

Hagerstown  v.  Klotz,  93  Md.  437  571 
Hagerty  v.  Shedd,  75  N.  H.  393  217 
Haley  v.  Boston,  191  Mass.  291     587, 

650 
Hall  V.  Boston,  122  Mass.  344  651 

V.  Concord,  71  N.  H.  367         545 

V.  Hall,  44  N.  H.  293  331 

V.  Smith,  2  Bing.  156  14 

Hallgren  v.   Campbell,   82   Mich. 

255  218 

Ham  V.  Board  of  Police,  142  Mass. 

90  218 

V.  The  Mayor,  70  N.  Y.  459    594, 

630 
Hamilton  v.     St.     Louis     County 

Court,  15  Mo.  3  104 

Hamilton   County  v.    Mighels,    7 

Ohio  St.  109  11 

Hampshire    County    v.    Franklin 

County,  16  Mass.  76  23,  29 

Hancock  v.  Hazzard,  12  Cush.  112  514 
Hang  Kie,  In  re,  69  Cal.  149  274 

Hannibal  &  St.  Jo.  R.  R.  Co.  v. 

Marion  County,  36  Mo.  296  471 
Hanover  v.  Eaton,  3  N.  H.  38  369 

V.  Weare,  2  N.  H.  131  369 

Hanson  v.  Vernon,  27  la.  28  '  129 

Harding  v.  Illinois,  196  U.  S.  78  45 

Harper    v.    Milwaukee,    30    Wis. 

365  558,  635 

Harrington  v.  Worcester,  186  Mass. 

594  589 

Harris  v.  Baker,  4  Maule  &  Selw. 

27  14 

Harris   v.    Board   of   Supervisors, 

105  111.  445  11 

Hart   V.    Bridgeport,    13    Blatchf. 

289  630 


Hart  V.  Mayor,  9  Wend.  571 
V.  Millsville,  125  Wis.  546 


210 
548 
Hartford  Bridge  Co.  v.  East  Hart- 
ford, 16  Conn.  171  33,  49 
Harwood  v.  Lowell,  4  Cush.  310  537 
Haskell  v.  New  Bedford,  108  Mass. 

208  538 

Hastings  v.  Spencer,  1  Curt.  C.  C. 

504  370 

Hatch  V.  Mann,  15  Wend.  46  235 

Hatcheson  v.  Tilden,  4  H.  &  McH. 

279  159 

Hatfield  v.  Straus,  189  N.  Y.  208  428 
Hathaway,  In  re,  71  N.  Y.  238  225 
Hatheway  v.  Sackett,  32  Mich.  99  409 
Having  v.  City  of  Covington,  25 

Ky.  Law  Rep.  1617  592 

Hawes  v.  Chicago,  158  111.  653  264 
Hawkes  v.   Kennebeck,  7  Mass. 

461  535 

Hawks  V.   Charlernont,  107  Mass. 

414  556  588 

Hay  V.  Cohoes  Co.,  2  Comst.  159  '  558 
Hayes  v.  Holly  Springs,  114  U.  S. 

120  374 

Hayes  v.  City  of  Oshkosh,  33 

Wis.  314  619,  634 

Haynes  v.  Cape  May,  21  Vroom, 

55  262 

Hayward  v.  Bath,  35  N.  H.  514  219 
Health  Department  v.  Rector,  etc., 

145  N.  Y.  32  294 

Heard  v.  Stanford,  Cases  tempore 

Talbot,  174  670 

Heath  v.  Des  Moines  &  S.  L.  Ry. 

Co.,  61  la.  11  430 

Hedges  v.  Dixon  Co.,   150  U.  S. 

184  527 

Heeg  V.  Licht,  80  N.  Y.  579  600 

Heins  v.  Lincoln,  102  la.  69  419 

Heland  v.  City  of  LoweU,  3  All. 

407  186 

Hendee  v.  Pinkerton,  96  Mass.  381  465 
Henderson,  City  of,  v.  Clayton, 

57  S.  W.  1  564 

Henley  v.  Lyme  Regis,  5  Bing.  91      572, 

575,  608,  610 
Herrington  v.  Santa  Clara  County, 

44  Cal.  496  233,  234 

Herzo  v.  San  Francisco,  33  Cal. 

134  515 

Hewison  v.  New  Haven,  37  Conn. 

475  124,  537 

Hicks  V.  Long  Branch,  40  Vr.  300  203 
Higginbotham  v.  Com.,  25  Grat. 

633  26 

Hildreth  v.  Lowell,  11  Gray,  345  538 
i^.  MTntire,  IJ.  J.  Marsh.  207  229 


Hill  V.   Board   of   Supervisors    of 

Livingston  County,  12  N.  Y.  52     248 
Hill  v.  Boston,  122  Mass.  344    534, 

557,  583,  633 

V.  Memphis,  134  U.  S.  198      132, 

373 


TABLE  OF  CASES. 


XV 


Hill  V.  Scotland  County,  34  Fed. 

208  509 

Hinde  v.  Vattier,  1  M'Lean,  118  370 
Hitchcock  V.  Galveston,  96  U.  S. 

341  471,  527,  528 

Hitchcock  v.  St.  Louis,  49  Mo. 

484  318 

Hixon  V.  Lowell,  13  Gray,  59  537 

HixoN  V.  Sharon,  190  Mass.  347    347, 

349,  350 
Hodge  V.  The  City  of  Buffalo,  2 

Denio,  110  317,  518 

Hoey  V.  Gikoy,  129  N.  Y.  132  429 

Hoggard  v.  Monroe,  51  La.  Ann. 

683  652 

Hoke  V.  Henderson,  4  Dev.  1  167 

Holland  v.  San  Francisco,  7  Cal. 

361  645 

Hollenbeck  v.  Winnebago  County, 

95  111.  148  11 

HOLLMAN     V.     PlATTEVILLE,      101 

Wis.  94  641 

Holman  v.  Townsend,  13  Met.  300  577 
Holt  V.  Somerville,  127  Mass.  408  202 
Home  Ins.  Co.  v.  Augusta,  50  Ga. 

530  316 

Hood  v.  Lynn,  1  Allen,  103  245,  327 
Hooper  v.  Emery,  14  Me.  377        328, 

571,  577 
Hopkins   v.    City   of   Duluth,    81 

Minn.  189  152 

Hopper  V.  Covington,  118  U.  S. 

148  374 
Hopple  V.  Hippie,  33  Ohio  St.  116  491 
V.  Trustees  of  Brown  To^vti- 

ship  in  Delaware  Co.,  13  Ohio 

St.  311  491 

Horner  v.  Coffey,  25  Miss.  434  653 
Horner  v.  Rowley,  51  la.  620  184 

Horton  v.  Ipswich,  12  Cash.  488  536 
Hot  Springs  Electric  Light  Co.  v. 

Hot  Springs,  70  Ark.  300  311 

Howard  v.  Worcester,  153  Mass. 

426  125,  557,  630,  631 

Howard  County,  Division  of,   15 

Kan.  194  198 

Hughes  V.  Ewing,  93  Cal.  414  28 

Hughes  v.  Monroe  County,  147 

N. Y.  49  592,  628 

Hull  V.  Supervisors,  19  Johns.  260  659 
Humboldt  Township  v.  Long,  92 

U.  S.  642  485,  497,  507 

Hume  V.  Mayor  of  N.  Y.,  74  N.  Y. 

264  144 

Humphreys  v.  Mears,  1  Man.   & 

Ryl.  187  14 

Hundley  v.  Harrison,  123  Ala.  292  599 
Hunt  V.  City  of  Boom-ille,  65  Mo. 

620  560 

V.  The  Mavor,  109  N.  Y.  134   626 

Hunter  v.  Chandler,  45  Mo.  452    ■  225 

V.  Nolf,  71  Pa.  282  235 

Hunter  v.  Pittsburg,  207  U.  S. 

161  40 


Huron    Waterworks    Co.    v. 

Huron,  7  S.  D.  9  445 

Hutcliins  V.  Smith,  63  Barb.  251  297 
Hutson  V.  Mayor  of  N.  Y.,  9  N.  Y. 

163  144,  609 

Hyde  v.  Jamaica,  27  Vt.  443  536 

I. 

Illinois  Trust  &  Savings  Bank  v. 
City  of  Arkansas  City,  76  Fed. 
271  463 

Indiana  Co.  v.  Agricultm-al  Society, 
85  Pa.  357  335 

Indianapolis,  City  of,  v.  Center 
Township,  143  Ind.  391  36 

Indianapolis,  City  of,  v.  Indianapo- 
lis G.  &  C.  Co.,  66  Ind.  396  463 


Jacksonville,  City  of,  v.  Ledwith, 

26  Fla.  163  272 

Jacobs,  Matter  of,  98  N.  Y.  98  294 
James  v.  Seattle,  22  Wash.  654  338 
Jamison  v.  Fopiana,  43  Mo.  565  444 
Jenkins  v.  Andover,  103  Mass.  94     129, 

422 
Jenne  v.  Sutton,  43  N.  J.  L.  257  597 
Jensen,  Matter  of,  28  Misc.  Rep. 

379  343,  345 

Johnson  v.  City  of  San  Diego, 

109  Cal.  468  26 

Johnson  City  v.  Charleston,  C.  & 

C.  R.  Co.  ,100  Tenn.  138  525 

Jones  V.  McAlpine,  64  Ala.  511  184 

V.  New  Haven,  34  Conn,  1        537, 

606,  610 

V.  WilUamsburg,  97  Va.  722     571 

Jorgensen  v.  Squires,  144  N.  Y.  280  429, 

431 
Jumbo  Cattle  Co.  v.  Bacon,  79 

Tex.  12  436 

Justices  of  Clark  Count}'  Court  v. 

The  P.  &  W.  &.  K.  R.  T.  Co.,  11 

B.  Monroe,  143  658 

Justices,   Opinion   of,    160   Mass. 

586  153,  154 

Justices,  Opinion  of,  3  Me.  481  213 
Justices'  Opinion,  6  Cush.  577  24 

K. 

Kadish  v.  Building  Ass.,  151  111. 

531  304 

Kameta,  Ex  parte,  36  Or.  251  199 

Kansas  City  v.  Lemen,  57  Fed.  905  582 
Keasy  v.  City  of  Louisville,  4 

Dana,  154  552 

Kedzie  v.  West  Park  Comrs.,  114 

111.  280  11 

Keeley  v.  Portland,  100  Me.  260     650, 

651 
Keilinger  v.  Bickel,  117  Pa.  St.  326  281 


XVI 


TABLE    OF   CASES. 


Kelley  v.  Lindsey,  7  Gray,  287  514,  516 

V.  Milan,  127  U.  S.  139  373 

V.  Milwaukee,  18  Wis.  83         619 

Kelly  V.  Boston,  186  Mass.  165        580, 

589 
V.  Mayor  of  Brooklyn,  4  Hill, 

263  356 

V.  Pittsburgh,  104  U.  S.  78        42 

Kelsey  v.  Wayne   Circuit  Judge, 

120  Mich.  457  352 

Kelso  v.  Teale,  106  Cal.  477  331 
Kennedy  v.  Green,  3  Myl.  &  K.  721  370 
Kent  V.  Rand,  64  N.  H.  45  331 

Ketchum  v.  City  of  Buffalo,  14 

N.  Y.  356  356,  360 

Keyes  v.  Village  of  Marcellus,  50 

Mich.  439  7 

Khron  v.  Brock,  144  Mass.  516  558 
Kies  V.  Erie,  135  Pa.  144  621 

V.  Lowrey,  199  U.  S.  233  43 

Kilgore  v.  Magee,  85  Pa.  401  96 

King  V.  Granger,  21  R.  I.  93  550 

—^  V.  Pasmore,  3  T.  R.  199  13,  35 
King  (The)  v.  The  Inhabitants  of 

Derby,  Sldnner,  370  658 

King  IK  Warlow,  2  M.  &  S.  75  225 

King  &  Queen  v.  Barlow,  2  Salkeld, 

609  658 

Kingman,    Petitioner,    153   Mass. 

566  118,  123 

Kinmundy  v.  Mahan,  72  111.  462  276 
KipPEs  V.   Louisville,    140  Ky. 

423  591 

Kirk  V.  Nowill,  1  T.  R.  124  210 

Klingman  v.  City,  153  Mass.  255  421 
Knox  V.  Aspinwall,  21  How.  544     482, 

483,  488,  492 
Kreitz  v.  Belirensmeyer,   149  111. 

496  239 


Labrake,  Matter  of,  29  Misc.  Rep. 

87  343 

La  Clef  V.  Concordia,  41  Kan.  323  582 
Ladd  V.  Brick  Co.,  68  N.  H.  185  439 
Lake  County  v.  Graham,  130  U.  S. 

674        497,  498,  499,  503,  505,  506, 

507 

V.  Rollins,  130  U.  S.  662     399,  408 

Lake  County  Water  &  Light  Co. 

V.  Walsh,  160  Ind.  32  452 

Lake  View,  City  of,  v.  Tate,  130 

111.  247  265 

Lamar  Water,  etc.  Co.  v.  City  of 

Lamar,  128  Mo.  188  249 

Lancaster  County  v.  Fulton,   128 

Pa.  48  234,  235 

Landaff's  Petition,  34  N.  H.  163  219 
Landau  v.  City  of  New  York,  180 

N.  Y.  48  596,  597,  598 

Lang  V.  Bayonnc,  74  N.  J.  L.  455  236 
Langworthy  v.   Dubuque,   16  la. 

273  24 


Lansing  v.  County  Treasurer,   1 

Dill.  522  50 

Lansing,    City  of,   v.   Toolan,   37 

Mich.  152  636,  637 

La  Porte  v.  Gamewell  F.  A.  T.  Co., 

146  Ind.  466  408 

Laporte  City,  Town  of,  v.  Good- 
fellow,  47  la.  572  199 
Laramie     County    v.    Albany 

County,  92  U.  S.  307     20,  28,  30, 

33,  42,  540 
Larkin  v.  County  of  Saginaw,  11 

Mich.  88  636,  637 

Larrabee  v.  Peabody,   128  Mass. 

561  652 

Launtz  v.  People,  113  111.  137  175 

Lawrence  v.   Fairhaven,   5  Gray, 

110  537 

V.  Ingersoll,  6  L.  R.  A.  308        180 

V.  McAlvin,  109  Mass.  311       347 

Layton  v.  New  Orleans,  12  La.  Ann. 

516  25,  28,  30,  50 

Leach  v.  People,  122  111.  420  230,  231 
Lebanon  v.  Griffin,  45  N.  H.  558  331 
Lee  V.  Village  of  Sandy  Hill,  40 

N.  Y.  442  604,  609 

Lee  County  v.  Rogers,  7  Wall.  181     49, 

676 
Le  Feber  v.  West  Allis,  119  Wis. 

608  426 

Lehigh  Valley  R.  R.  Co.  w.  Br  and  t- 

maier,  113  Pa.  610  287 

Leonard  v.  Middleborough,  198 

Mass.  221  348 

Le  Roy  v.  Hurlbut,  24  Mich.  44    82, 

7,  124,  638 
Lester  v.  Jackson,  69  Miss.  887     415, 

416 
Levy   v.    Mayor,   etc.   op   New 

York,  1  Sandf.  465  569 

Lewis,  Ex  parte,  45  Tex.  Cr.  1  101 

Lewis  V.  Widber,  99  Cal.  412  395 

LiBBY  V.  Portland,  105  Me.  370  647 
Limestone  County,  Comrs.  of,  v. 

Rather,  48  Ala.  433  68 

Lincoln     v.    Boston,     148     Mass. 

578  125 

Linehan  v.  Cambridge,  109  Mass. 

212  129 

Litchfield  v.  Ballou,  114  U.  S. 

190  520 

Little    v.    Holyoke,    177    Mass. 

114  642,  588,  651 

Little  V.  Madison,  49  Wis.  605  635 
Livermore  v.  Board,  etc.,  2  Vroom, 

508  621 
V.  Freeholders  of  Camden,  29 

N.  J.  245  606 

Lloyd  V.  Smith,  176  Pa.  213  96 

V.  The  Mayor,  5  N.  Y.  374     573, 

594,  613,  624 
Loan  Assoc,  v.  Topeka,  20  Wall. 

655  346 

Logan  V.  Pyne,  43  la.  524  419 


TABLE  OF  CASES. 


XVll 


Logansport,  City  of,  v.  Crockett, 

64  Ind.  319  185 

V.  Legg,  20  Ind.  315  188 

London  v.  Headen,  76  N.  C.  72  168 
Los  Angeles  v.  Los  Angeles  City 

Water  Company,  177  U.  S.  558  428 
Los    Angeles    County    v.    Orange 

County,  97  Cal.  329  28 
Louisiana  v.   Mayor  of  New  Or- 
leans, 109  U.  S.  285  68 

V.  Pillsbury,  105  U.  S.  278  68 

Louisiana  v.  Wood,  102  U.  S.  294    510, 

527,  528,  564 
Louisville  Trust  Co.  v.  City  of  Cin., 

76  Fed.  296  ,  436 
Louisville  v.  University  of  I/)uis- 

ville,  15  B.  Mon.  642  124 
Lowber  v.  Mayor,  etc.,  5  Abbott 

Pr.  325  383 
Lowell  Five  Cents  Savings  Bank  v. 

Winchester,  8  Allen,  109  514 

Lowell  V.  Simpson,  10  Allen,  88  275 
Luehrman  v.   Taxing   District,   2 

Lea  425  64 

Lumbard  v.  Stearns,  4  Cush.  60  129 

Luques  v.  Dresden,  77  Maine,  186  327 

Lycoming  v.  Union,  15  Fa.  St.  166  28 
Lynch  v.   Springfield,    174   Mass. 

430  588 
Lynde  v.  The  County  of  Winne- 
bago, 16  Wall.  13  485 
Ljmn  V.  Nahant,  113  Mass.  433  535 
Lyon  V.  Jerome,  26  Wend.  485  276 

M. 

Mackey  v.  City  of  Vicksburg,  64 

Miss.  777  640 

Madison,  City  of,  v.   Korbly,   32 

Ind.  74  180 

Malcohn  v.  Rogers,  5  Cow.  188        248, 

658 
Manning  v.  Springfield,  184  Mass. 

245  589 

Mannix  v.  State,  115  Ind.  245  180 

Marcy  v.  Oswego,  92  U.  S.  637      497, 

506,  507 
Marion    County,    Comrs.    of,    v. 

Clark,  94  U.  S.  278  509 

Marmet  v.  State,  45  Ohio  St.  63  315 
Marsh   v.    Fulton    County,    10 

Wallace,  676  474,  374,  484,  512 
Marshfield  v.  Wis.  Tel.  Co.,  102 

Wis.  604  313,  314,  315 

Marston  v.  Scarborough,  71  Me. 

267  650 

Maryland  v.  Baltimore  &  O.  R.  R., 

3  How.  534  42 

Mason  v.  Fearson,  9  How.  246         658 

V.  Haile,  12  Wheaton,  379        661 

Mather  v.  City  of  Ottawa,  114  111. 

659  420 

Maxmiliani;.  The  Mavor,  62  N.  Y. 

160  145,  582,  593,  624,  627 


May  V.  People,  1  Colo.  App,  157  272 
Maydwell  v.    City  of   LouisvUle, 

116  Ky.  885  592 

Mayor  v.  Furze,  3  Hill,  612      263,  572, 

625,  658 

V.  Groshon,  30  Md.  436  133 

V.  Harris,  73  Ga.  428  430 

V.  Houston  Ry.  Co.,  83  Tex. 

555  436 

V.  Ray,  19  WaU.  468  368 

V.  Second   Ave.   R.   Co.,   32 

N.  Y.  261  317 

V.  The  State,  15  Md.  376  24 

V.  Yuille,  3  Ala.  137  341 


Mayor  &  City  Council  of  Balti- 
more V.   Radecke,  49   Md.  217 

272,  276 

Mayor  &  City  Council  of  Cumber- 
land V.  Willison,  50  Md.  138         558 

Mayor  of  Lyme  v.  Turner,  Cowper, 
87  572,  608 

Mayor  of  New  York,  In  re,  193 
N.  Y.  503  162 

Mayor,  etc.  of  New  York,  Matter 
of,  99  N.  Y.  569  345 

Mayor,  etc.  of  New  York  v.  Bailey, 
2  Denio,  456  575 

V.  Sheffield,  4  Wall.  189  539 

V.  Tenth  Nat.  Bank,  111  N.  Y. 

446  344 

McArthur  v.  Saginaw,  58  Mich. 
357  7 

McCarthy  v.  Mayor  of  New  York, 
96  N.  Y.  1  139 

V.  Syracuse,  46  N.  Y.  194        625 

McCarty  v.  Natural  Carbonic  Gas 
Co.,  189  N.  Y.  40  297 

McCarver,  Ex  parte,  39  Tex  Cr. 
448  267 

McClaughry  v.  Hancock  County, 
46  111.  356  471 

McCloskey  v.  Krehng,  76  Cal.  511     274 

McClure  v.  Township  of  Oxford, 
94  U.  S.  429  494 

McCombs  V.  Akron  Council,  15 
Ohio,  474  555 

McConoughey  v.  Jackson,  101  Cal. 
265  339 

McCormick  v.  Bay  City,  23  Mich. 
457  355 

McCoRTLE  V.  Bates,  29  Oh.  St. 
419  207 

McCracken  v.  Hayward,  2  How- 
ard, 612  661 

V.  San  Francisco,  16  Cal.  624    477 

McCready  v.  Guardians  of  the  Poor 
of  Philadelphia,  9  S.  &  R.  94         564 

McCullough  V.  Moss,  5  Denio,  567  356 

McCuUy  V.  State,  102  Tenn.  509     219 

McDade  v.  City  of  Chester,  117 
Pa.  414  583 

McDonald  v.  Mayor,  etc.  of 
New  York,  68  N.  Y.  23        516,  515 

McDonald  v.  State,  80  Wis.  407       198 


XVUl 


TABLE    OF   CASES. 


McGill  V.  Granite  Co.,  70  N.  H. 

125  546 

McGillivray  v.  Joint  School  Dist., 

112  Wis.  354  408 

McGinnis  v.  Inhabitants  of  Med- 

way,  176  Mass.  67  543,  544 

McKellar  v.  Detroit,  57  Mich.  158  7 
McKim  V.  Odom,  3  Bland,  407  22 

McKinnon  v.  Cotner,  30  Or.  588  197 
McLean  Coimty  Precinct  v.  De- 
posit Bank,  81  Ky.  254  677 
McPherson  v.  Foster,  43  la.  48  419 
McVeany  v.  Mayor,  80  N.  Y.  185  238 
Mead  v.  Acton,  139  Mass.  341         422 

V.  Keeler,  24  Barb.  29  362 

V.  New  Haven,  40  Conn.  72    543, 

583,  630,  631 
Mears  v.  Wilmington,  9  Iredell,  73  574, 

575,  609 
Melker  v.  New  York,  190  N.  Y. 

481  595 

Memphis  v.   Am.   Exp.  Co.,    102 

Tenn.  336  317 

V.  W^oodward,  12  Heisk.  499    237 

Mentz,   Town   of,   v.   Cook,    108 

N.  Y.  504  459 

Mercer    County    v.    Hackett,     1 

WaU.  33  483 

Merchants'  Bank  v.  Cook,  4  Pick. 

114  577 

Meriv/ether    v.    Garrett,    102 

U.  S.  472       54,  42,  44,  79,  123,  327, 

447,  675 
Merrifield  v.  Worcester,  110  Mass. 

216  538 

Merrill  v.  MonticeUo,  138  U.  S.  673  372, 

373,  374,  375 

V.  Plainfield,  45  N.  H.  126         439 

Merrimack  R.  S.  Bank  v.  Lowell, 

152  Mass.  556  125 

Mersey  Docks  v.  Gibbs,  11  H.  L. 

Cas.  686  125 

Metropolitan  Railroad  v.  Dis- 
trict OF  Columbia,  132  U.  S.  1  3 
Mich.  Tel.  Co.  v.  Benton  Harbor, 

121  Mich.  512  315,  317 

Middlesex    Co.    v.    McCue,    149 

Mass.  103  558 

Midland  Ry.  Co.  v.  Great  Western 

Ry.  Co.,  8  Ch.  App.  841  465 

Mikesell  v.  Dm-kee,  34  Kan.  509  430 
Miles  v.  City  of  Worcester,  154 

Mass.  511  557 

MiUer   v.    Warner,  42  App.  Div. 

208  213 

Mills  v.  Brooklyn,  32  N.  Y.  489    546, 

609,  616 
Mills  v.  Gleason,  11  Wis.  470      359, 

366 
Mills  V.  Williams,  11  Ire.  558  19 

Milne  v.  Davidson,  8  Mart.  586  187 
Milner  v.  Pensacola,  2  Woods,  662  75 
Milwaukee  v.  Milwaukee,  12  Wis. 

93  107 


Minner  v.  The  Merchants'  Bank, 

1  Peters,  64  658 

Minot    V.    West    Roxbury,     112 

Mass.  1  320,  321,  337 

Minturn  v.  Larue,  23  How.  437         341 
Missano  v.  Mayor  of  N.  Y.,  160 

N.  Y.  123  144 

Mitchell  V.  Burlington,  4  Wallace, 

270  373 

Mobile  v.  Watson,  116  U.  S.  289    64, 

71,78 
Mobile,  Coimty  of,  v.  Kimball,  102 

U.  S.  691  117 

Mobile  &  S.  H.  R.  R.  v.  Kennerly, 

74  Ala.  566  67 

Molloy  v.  New  Rochelle,  198 

N.  Y.  402  377 

Moneyweight    Scale    Co.    v.  Mc- 

Bride,  199  Mass.  503  276 

Monterey    v.    Jacks,    203    U.    S. 

360  44 

Montgomery  v.  W^est,  9  L.  R.  A. 

(N.  S.),  659  277 

Montpelier  v.  East  MontpeUer,  29 

Vt.  20  23,  59,  124 

Moran  v.  Miami  Coimty,  2  Black, 

732  483 

Morgan  v.  Beloit,  7  WaU.  613  46 

V.  HalloweU,  57  Maine,  375    537 

Morgan  Railroad  Co.  v.  Board  of 

Health  of  Louisiana,  118  U.  S. 

455  285 

Morris  v.  State,  62  Tex.  728         71,  76 
Morrison  v.  City  of  Lawrence,  98 

Mass.  219       '  560 

Morton  v.  Mayor,  etc.  of  N.  Y., 

140  N.  Y.  207  297 

Morville  v.  American  Tract  Society, 

123  Mass.  129  515 

Moses  V.  MacFerlan,  2  Burr.  1005     512 
V.  U.  S.,  16  App.  Cas.  D.  C 


428 

Moss  V.  McCuUough,  5  Hill,  131 
V.  Oakley,  2  Hill,  265 


297 
356 
356 
356 
192 


Mott  V.  Hicks,  1  Cow.  513 
Motz  V.  Detroit,  18  Mich.  495 
Moundsville  v.  Velton,  35  W.  Va. 

217  199 

Mount  Pleasant  v.  Beckwith, 

100  U.  S.  514    45,  28,  30,  33,  42,  67, 

68,  71,  78,  124,  132 

Mower  i>.  Leicester,  9  Mass.  247  601, 

536,  577,  578 
Mugler  V.  Kansas,  123  U.  S.  623  274 
Mulcairns  v.  City  of  Janes\t[le, 

67  Wis.  24  633 

Munn  V.  lUmois,  94  U.  S.  113  281 

Murphy  v.  Needham,  176  Mass. 

422  546,  590 

Murray  v.  Omaha,  66  Neb.  279      542 
Murtaugh  v.  City  of  St.  Louis,  44 

Mo.  479  630 

Muscatine  Turnverein  v.  Funck, 

18  la.  469  81 


TABLE  OF  CASES. 


XIX 


N. 

Nebraska    City    v.    Campbell,    2 

Black,  590 
Neff  V.  WeUesley,  148  Mass.  487 

Nelson  v.  Mayor,  63  N.  Y.  535 


•  V.  Milford,  7  Pick.  18 

■V.  St.  Martin,  111  U.  S.  720 


539 
125, 
589 
518, 
619 
347 
664, 
666 
420 


Nerlien  v.  Brooten,  94  Minn.  361 
Neuman  v.  State,  76  Wis.  112         316 
Nevins  v.  City  of  Peoria,  41  111. 

502  550 

Newbold  v.  Glenn,  67  Md.  489        444 
Newburg  Turnpike  Co.  v.  Miller, 

5  Johnson's  Chancery,  113     248,  658 
New  Jersey  v.  Wilson,  7  Cranch, 

166  662 

Newlin,  Township  of,  v.  Davis,  77 

Pa.  317  288 

New    London    v.    Barnard,    22 

Conn.  552  317 

New  Orleans  v.  Clark,  95  U.  S.  644     28, 

42,  51,  344 

V.  Morris,  105  U.  S.  600  448 

V.  New  Orleans  Water  Works 

Co.,  142  U.  S.  79  44,  119 

New    Orleans    Gas    Company    v. 

Louisiana  Light  Company,  115 

U.  S.  650  428 

New  Orleans  Gaslight  Co.  v.  City 

of  New  Orleans,  42  La.  Ann.  188  463 
New  Orleans  R.  R.  v.  City  of  New 

Orleans,  26  La.  Ann.  478  67 

New   Orleans   Waterworks   Com- 
pany V.  Rivers,  115  U.  S.  674      428 
New  Shoreham  v.  Ball,  14  R.  I.  566,  649 
Newton  v.  Belger,  143  Mass.  598     272, 

275 

V.  Joyce,  166  Mass.  83  274 

New  York,  Lake  Erie  &  Western 

R.  R.  Co.  V.  Commonwealth  of 

Pennsylvania,  153  U.  S.  628  436 
New  York,  Mayor  of,  v.  Second 

Ave.  R.  R.,  32  N.  Y.  261  124 

Niagara   Falls   &   Whirlpool   Ry. 

Co.,  Matter  of,  108  N.  Y.  375  345 
Nichols  V.  Boston,  98  Mass.  39  557 
Nicholson  v.   Detroit,    129  Mich. 

246  633 

Nightingale,  Petitioner,   11  Pick. 

168  259,  260 

Niles  Water  Works  v.  City  of  Niles, 

59  Mich.  324  638 

Nims  V.  Mavor,  etc.,  59  N.  Y.  500     549 
Noel  V.  People,  187  111.  587  272 

Norfolk  v.  Flynn,  101  Va.  473       282 
North  Chicago  City  Railway  Co. 

V.  Town  of  Lake  View,  105  111. 

183  309 

North  Chicago  Electric  Railway 

Co.  V.  Penser,  190  111.  67  308 


North  Hemstead  v.  Hemstead,  2 
Wend.  109  23,  26,  33,  49 

North  Hudson  Railroad  Co.  v.  Ho- 
boken,  12  Vroom,  71  309 

Northern  Bank  w.Porter  Town- 
ship, 110  U.  S.  608        489,  501,  506 

Northern  Liberties,  Com'rs  of, 
V.  Northern  Liberties  Gas  Co., 
12  Pa.  St.  318  277 

Northern  T.  Co.  v.  Snyder,  113 
Wis.  516  413 

Norton  v.  Dyersburg,  127  U.  S. 
160  373 

V.  Mansfield,  16  Mass.  48        533 

V.  Shelby  County,  118  U.  S. 

425  230,  236 

Norwich  v.  County  Com'rs,  13 
Pick.  60  116 

O. 

Oaths  to  be  taken  by  Attorneys, 

In  re,  20  Jolins.  491  225 

O'Brien  v.  Derry,  73  N.  H.  198        545 

• V.  Worcester,  172  Mass.  348     589 

O'Connor  v.  Memphis,  6  Lea,  730  64, 

67,  79 
O'Donnell     v.    Syracuse,    184 

N.  Y.  1  611 

Ogden  V.  Saunders,  12  Wheat.  231     661 
Ogg  V.  Lansing,  35  la.  495  583 

Ohio  ex  rel.  v.  The  Governor,  5 

Oh.  St.  53  658 

O'Leary  v.  Fire  and  Water  Com- 
missioners, 79  Mich.  281  6 
Oliver  v.  Worcester,  102  Mass.  489 

537,  538,  589,  631,  643,  648,  650 
Olney  v.  Harvey,  50  111.  455  26,  49 
Omaha,  City  of,  v.  Croft,  60  Nebr. 

57  544 

Oregon  v.  Jennings,  119  U.  S.  74      504 
Orleans  v.  Pratt,  99  U.  S.  676  501 

O'Rourke  v.  Sioux  Falls,  4  S.  D. 

47  571 

Osgood  v.  Conway,  67  N.  H.  100     330 
Osgood  V.  Nelson,  L.  R.  5  H.  L. 

636  219 

Ottawa  V.  Carey,  108  U.  S.  110        341 


Page  V.  Allen,  58  Pa.  338  97 

Palmer  v.  City  of  Danville,  154  111. 

156  266 

Parker  v.  Lowell,  11  Gray,  353  537 
Parkersburg  v.  Brown,  106  U.  S. 

487  527,  528,  529 

Parr  v.  Greenbush,  72  N.  Y.  463  515 
Parsons  v.  Goshen,  11  Pick.  396      246, 

533 
Passaic,  City  of,  v.  Patterson  Bill 

Posting  Advertising  &  Sign  P. 

Co.,  72  N.  J.  L.  285  293 

Paterson  v.  Society,  4  Zab.  385    13,  35 


XX 


TABLE   OF   CASES. 


Patton  V.  Board  of  Health,  127  Cal. 

388  213 

Pawlet,  Town  of,  v.  Clark,  9  Cr. 

292  88 

Peck  V.  Burr,  10  N.  Y.  294  519 

Pekin,  City    of,    v.  McMahon, 

154  111.  141  639 

Pennoyer  v.  SagLaaw,  8  Mich.  534     7, 

550 
Pennsylvania  Co.  v.  James,  81  *  Pa. 

194  289 

V.   Stegemeier,  118  Ind.  305    186 

Pennsylvania    Railroad    Com- 
pany's Case,  213  Pa.  373  286 

Pennsylvania  R.  R.  Co.  v.Duquesne 
Borough,  46  Pa.  223  288 

V.  Irwin,  85  Pa.  336  288 

Pension   Fund   Assoc,   v.   Wal- 
ton, 182  Pa.  373  333 
People   V.    Alameda   County,    26 
Cal.  641                                       28,  30 

V.  Anderson,  239  111.  266  73 

V.  Arguello,  37  Cal.  524  383 

V.  Barnett  Township,  100  111. 

332  168 

People  v.  Batchellor,  53  N.  Y. 

128  120,  124 
V.  BeU,  10  Cal.  570  662 

V.  Board  of  Education,  127 

111.  624  170,  209 

People  v.  Board  of  Education, 

143  N.  Y.  62  209 

V.  Bond,  10  Cal.  570  661 

V.  Brown,  83  111.  95  77 

V.  Chicago  W.  Div.  Ry.  Co., 

118  111.  113  302 

People  v.  Clute,  50  N.  Y.  451  156 
People  V.  Coler,  166  N.  Y.  1    136,  137, 

139,  346 
V.  Common  Council,  28  Mich. 

228  100,  124,  145,  625 

V.  Detroit  United  Railway, 

134  Mich.  682  271 

V.  Draper,  15  N.  Y.  549  24, 

100,  116 

V.  Ewer,  141  N.  Y.  129  294 

V.  Fairbury,  Town  of,  51  111. 

149  73 

V.  Fire  Com'rs,  72  N.  Y.  445      219 

z;.  Flagg,  46  N.  Y.  401      116,120, 

121 
People  v.  French,  32  Hun,  112  214 
People  V.  Gillson,  109  N.  Y.  389      294 

V.  Hawes,  37  Barb.  440  114 

V.  Hepler,  240  111.  196  73 

People  v.  Hurlbut,  24  Mich.  44      82, 

7,  124,  638 
People  V.  Jerome,  73  N.  Y.  Supp. 

306  470 

V.  Kipley,  171  111.  44  213 

V.  Mahaney,  13  Mich.  481      100, 

198 

V.  Mayor  of  Chicago,  51  111.  1    124 

V.  McBride,  234  111.  146  75 


People  V.  MorreU,  234  111.  47  74 

V.  Morris,  13  Wend.  325         19, 

67,  111,  123,  323 
People  v.  Nibbe,  150  111.  269  38 

People  V.  Nichols,  79  N.  Y.  582  219 
People  v.   Niebruegge,  244  111. 

82  72 
People  V.  O'Brien,  111  N.  Y.  1  124 
V.  Orange  Co.  Road  Cons.  Co., 

175  N. Y.  84  139,  294 

V.  Pinkney,  32  N.  Y.  393  24 

V.  Salomon,  51  111.  37  11 

V.  Shepard,  36  N.  Y.  285  100 

V.  Stratton,  28  Cal.  382  225 

V.  Sup.  Court,  5  Wend.  125, 10 

Wend.  289  659 

V.  Therrien,  80  Mich.  187         218 

V.  Toal,  85  Cal.  333  230 

V.  Vermilyea,  7  Cowen,  393      659 

?;.  Walsh,  96  111.  232  11 

People  v.  Welles,  14  N.  Y.  Misc. 

226  205 

V.  Williams,  145  111.  573         165 

People  V.  Wood,  148  N.  Y.  142         203 

V.  Wren,  4  Scam.  269  19,  73 

Peoole    ex    rel.    v.    May,    9    Col. 

80  399 

People  ex  rel.   Brown  v.    Bd.   of 

Supers.,  Onondaga  Co.,  4  N.  Y. 

Cr.  Rep.  102  344 

People  ex  rel.  Coughlin  v.  Gleason, 

121  N.  Y.  631  379,  380 

People  ex  rel.  Dunn,  v.  Ham,  166 

N.  Y.  477  296 

People  ex  rel.  Leutilhon  v.  Coler, 

168  N.  Y.  8  139 

People  ex  rel.  Lunney  v.  Campbell, 

72  N.  Y.  496         "  380 

People  ex  rel.   Murphy  v.  Kelly, 

76  N.  Y.  475  345,  415 

People  ex  rel.  N.  Y.  E.  L.  Co.  v. 

Squire,  107  N.  Y.  593  314 

People  ex  rel.   North  v.  Feather- 

stonhaugh,  172  N. Y.  112  139 

People  ex  rel.  Society  of  the  New 

York   Hospital   v.    Purdy,    126 

N.  Y.  679  595 

People  ex  rel.  Treat  v.  Coler,  166 

N.  Y.  149  139 

People     ex    rel.    Wineburgh    v. 

Murphy  195  N.  Y.  126  289 

Perin  v.  Carey,  24  How.  465  410 

Perkins  v.   Lawrence,    136   Mass. 

305  588 

V.  Milford,  59  Me.  315  328 

V.   New   Haven,    53    Conn. 

214  212 

Perry  v.  Worcester,  6  Gray,  544  537 
Perry  County  v.  Conway  County, 

52  Ark.  430  30 

Peters  v.   City  of  Lindsborg,   40 

Kan.  654  544 

Peterson  v.  The  Mayor,  17  N.  Y. 

449  519 


TABLE    OF    CASES, 


XXI 


Pettingell  v.  Chelsea,   161   Mass. 

368  621 

Pevey    v.   Aylward,    205   Mass. 

102  200 

Pfahler,  In  re,  150  Cal.  71  149 

Phelps  v.  Hawley,  52  N.  Y.  23  248 
Philadelphia  v.  Field,  55  Pa.  320      116 

V.  Fox,  64  Pa.  169  92,  95 

V.  Ilinlv,  2  Atl.  505  238 

V.  W.  U.  Tel.  Co.,  11  PhUa. 

327  314 

Philadelpliia  &  Reading  R.  R.  Co. 

V.  Killips,  88  Pa.  405  287 

Philadelpliia,  Wilmington,  &  Bal- 
timore   R.    R.    V.    Quigley,    21 

How.  202  563 

Pickard  v.  Sears,  6  A.  &  E.  474  47 
Pierce  v.  Bartrmn,  Cowp,  269  253 

Pikes  Peak  Power  Co.  v.  Colo- 
rado Springs,  105  Fed.  1  462 
Piqua  Branch  v.  Ivnoop,  16  How. 

331  662 

Pittsburg  City  v.  Grier,  22  Pa.  54  575, 

609 
Pittsbm-g,    etc.   R.   Co.    v.   Town 

of  Crown  Point,  146  Ind.  421  452 
Piatt  V.  Waterburv,  72  Conn.  531  550 
Platters.  Board,  etc.,  103  Ind.  360  -444 
Plessy  V.  Ferguson,  163  U.  S.  537  276 
Ploughboy  (The),  1  Gall.  41  370 

Plymouth,  City  of,  v.  Schultheis, 

135  Ind.  339  272 

PoUce  Com.  v.  Louisville,  3  Bush, 

597  100 

Pohce  Jury  t;.  Britton,  15  Wall.  566  373 
Pontiac  v.  Carter,  32  Mich.  164  548 
Porter  v.  Sullivan,  7  Gray,  441  535 
Port  Huron,  City  of,  v.  McCall,  46 

Mich.  565  354 

Portland  v.  Yick,  44  Or.  439  195 
Postal  T.  C.  Co.  V.  Taylor,   192 

U.  S.  64  317 

Potter  V.  Douglas  Co.,  87  Mo.  240  401 
Potts  v.  Cape  May,  66  N.  J.  L. 

544  340 

Powell  V.  Pennsylvania,  127  U.  S. 

678  274 

Powers  V.  Wood  County,  8  Oh.  St. 

290  26 

Pratt  V.  Allen,  13  Conn.  119  116 

V.  Weymouth,  147  Mass.  245   125, 

589 
Prav   V.    Jersey   City,    3    Vroom, 

394  537,  606,  621 

President,  etc.  v.  City  of  Indian- 

apohs,  12  Ind.  620  60 

V.  Thompson,  20  111.  197  73 

Prince  v.  City  of  Quincy,  105  lU. 

138  399 

Pritchard  v.  Edison  Elec.  111.  Co., 

179  N.  Y.  364  297 

Proprietors  of  Locks  &  Canals  v. 

Lowell,  7  Gray,  223  538 

Proprietors    of    Mount    Hope 


Cemetery  v.  Boston,  158  Mass. 

509  123 

Providence,  City  of,  v.  Clapp,  17 

How.  161  606 
V.  Union  Ry.  Co.,    12  R.  I. 

473  302 

Pumpelly  v.   Green  Bay  Co.,    13 

Wall.  166  550,  558 

Putnam  v.  Langley,  133  Mass.  204    203 


Q- 

Queen  v.  Mayor,  L.  R.  3  Q.  B.  629     16 T 
V.  Mayor  of  Sheffield,  L.  R. 


6  Q.  B.  652 


R. 


614 

262 

526 
124 


119 


Radcliff's    Exrs.    v.    Mayor,    etc. 

of  Brookh-n,  4  N.  Y.  195 
Rafferty  v.  Central  Traction  Co., 

147  Pa.  St.  579 
Railroad  Co.  v.  Bensley,  6  U.  S. 

App.  115 

V.  EUerman,  105  U.  S.  166 

V.  Otoe,  County  of,  16  Wall. 

667 
Railroad  Company  v.  Richmond, 

96  U.  S.  521  277 

Railroad  Company  v.  Savannah, 

77  Ga.  731  309 

Railroad  National  Bank  v.  City 

OF  Lowell,  109  Mass.  214  513,  516 
Railway  Co.  v.  Thompson,  24  Kan. 

170  526 

Ralls  County  Court  v.  U.  S.,  105 

U.  S.  733  68,  69 

Rasinussen  v.  Carbon  County,  8 

Wyo.  277  237 

Rathbone  v.  Wirth,  150  N.  Y.  459  101 
Rauch  v.  Chapman,  16  Wash.  568  392 
Rawson  v.  Spencer,  113  Mass.  40     123, 

127,  129 
Read  v.  Atlantic  City,  49  N.  J.  L. 

558  463 

V.  Camden,  25  Vroom,  347      263 

V.  Citv  of  Plattsmouth,  107 

U.  S.  568  527,  528 

Red  Wing,  City  of,  v.  Chicago,  M. 

&  St.  P.  Ry.  Co.,  72  Minn.  240  426 
Reed  v.  Belfast,  20  Me.  246  536,  577 
V.  Home  Savings  Bank,  130 

Mass.  443  563 

Rees   v.   Watertown,   19   Wall. 

107  667,  675 

Reg.  V.  Smith,  5  Q.  B.  614  219 

Requa  v.   City  of  Rochester,   45 

N.  Y.  129  144 
Rex  V.  Bridge,  1  M.  &  S.  76  160 
V.    Cambridge    Univ.,    Fort. 


202 


V.  Foxcraft,  2  Burr.  1017 
V.  Gower,  3  Salk.  230 
V.  Hawkins,  10  East.  211 


166 
176 
166 
160 


xxu 


TABLE   OF   CASES. 


Rex  V.  Parry,  14  East.  549  160  I 

Reynolds   v.    Commissioner,    etc., 

5  Oliio,  204  444 
V.  Waterville,  92  Me.  292        408, 

469 
Rhobidas   v.   Concord,   70  N.  H. 

90  646 

Rhodes     v.     Cleveland,     10    Oh. 

159  576 

Richardson  v.   Smith,    59   N.   H. 

517  219 

Richland,  County  of,  v.  County  of 

Lawrence,  12  111.  8  23,  30,  88,  124 
Richmond  v.   Long's  Adm'rs,    17 

Gratt.  375  582,  610,  630 

V.  Smith,  15  Wall.  429  539 

Richmond,  City  of,  v.  Dudley,  129 

Ind.  112  272,  273,  276 

Riddle  v.  Proprietors  of  Locks  & 

Canals,  7  Mass.  169      323,  536,  575, 

577 
Riley  z^.  Rochester,  9  N.  Y.  64  415 
Ritchie     v.    Richards,    14     Utah, 

345  198 

Robert  v.  Powell,  168  N.  Y.  411  432 
Roberts  v.  City  of  Louisville,  17 

S.  W.  216  449 

V.  State,  160  N.  Y.  217  345 

Rochester    v.     Macauley-Fien 

Milling  Co.,  199  N.  Y.  207  295 
Rochester  v.   Roberts,  29  N.  H. 

360  116 

Rochester,    City   of,   v.    Town   of 

Rush,  80  N.  Y.  302  449 

V.  West,  164  N.  Y.  510  292 

Rochester  Wliite  Lead  Co.  v.  Roch- 
ester, 3  N.  Y.  463  549,  574,  615 
Rock  V.  Rhinehart,  88  la.  37  423 
Rogers  v.  Burhngton,  3  Wall.  654     132, 

373 
Rollins  V.  Lake  Co.,  34  Fed.  Rep. 

845  398,  399 

Roosevelt  v.  Draper,  23  N.  Y.  318  113 
Ross  V.  Madison,  1  Ind.  281  609 

Rowland  v.  City  of  Gallatin,   75 

Mo.  134  560,  561 

Royal  British  Bank  v.  Torquand, 

6  Ell.  &  Bl.  327  483,  488 
Ruggles  V.  Collier,  43  Mo.  353  276 
RuMFORD  School  Dist.  v.  Wood, 

13  Mass.  193  2,  535 

Russel  V.  Reed,  27  Pa.  St.  170  24 

Russell  V.  Hallett,  23  Kan.  276  234 
RtrssELL  V.  Men  of  Devon,  2  T.  R. 

667  5.30,  .536,  577,  578,  601,  671 

Russell    v.    Tacoma,    8    Wash. 

1.56  628 

Rutter  V.  WTiite,  204  Mass.  59  200 

Ryan  v.  City  of  New  York,  177 

N.  Y.  271  135 

Ryce    V.   City    of    Osage,  88    la. 

5.58  234 

Rylands  v.  Pinlcerman,  63  Conn. 

176  212 


S. 

Sackett  v.  City  of  New  Albany, 

88  Ind.  473  382,  386 

Safety   Insulated   Wire   &    Cable 

Co.    V.   City   of    Baltimore,    13 

C.  C.  A.  375  463 

St.  Joseph's  Township  v.  Rogers, 

16  WaU.  644  484 

St.  Louis  V.  Allen,  13  Mo.  400  22 

V.  Russell,  9  Mo.  507  24 

V.  Shields,  62  Mo.  247  230 

V.  W.  U.  Tel.  Co.,  149  U.  S. 

465  315 

St.  Louis,  City  of,  v.  Fitz,  53  Mo. 

582  268 

V.  The  Maggie  P.,  25  Fed.  202   465 

V.  W.  U.  Tel.  Co.,  148  U.  S. 

93  436 

St.  Louis  G.  L.  Co.  v.  St.  Louis, 

46  Mo.  121  34 

St.  Paul,  City  of,  v.  Colter,  12  Minn. 

41  265 

V.  Stoltz,  33  Minn.  233         424 

St.  Peter  v.  Denison,  58  N.  Y.  416  558 
St.  Tammany  Waterworks  v.  New 

Orleans  Waterworks,  120  U.  S. 

64  428 

Salamanca   Township    v.    Wilson, 

109  U.  S.  627  81 

Salem  v.  Maynes,  123  Mass.  372     274, 

281 
Saline  County,  Com'rs  of,  v.  An- 
derson, 20  Kan.  298  238 
Salt  Lake   City  v.   Hollister, 

118  U.  S.  256  561 

Samis  v.  King,  40  Conn.  298  239 

Sammons  v.  City  of  Gloversville, 

175  N.  Y.  346  612 

Sanford  v.  Augusta,  32  Me.  536  577 
San  Francisco  Gas  Co.  v.  City  of 

San  Francisco,  9  Cal.  453      463,  644, 

646 
Santa  Clara,  etc.  Lumber  Co.  v. 

Hayes,  76  Cal.  387  236 

Saunders  v.  Haynes,  13  Cal.  145  160 
Savage  v.  Rix,  9  N.  H.  265  369 

Savannah  v.  Scarborough,  71  Me. 

267  650 

Savannah,  City  of,  v.  Kellv,  108 

U.  S.  184  "  375 

Savings    Bank    v.    Winchester,    8 

Allen,  109  518 

Sawyer  v.  Corse,  17  Grat.  241  610 

V.  Northfield,  7  Cush.  490         536 

Schaffor  v.  Cadwallader,  36  Pa.  126  60 
Schneider  v.  Menasha,  118  Wis. 

298  413 

School  Directors  v.  School  Direc- 
tors, 135  111.  464  73 
School  District  v.  Bennett,  52  Ark. 

511  529 

V.  Richardson,  23  Pick.  62  33 

V.  Tapley,  1  All.  48  33 


TABLE    OF   CASES. 


XXIU 


23 

22 

190 

30 


614 
575 
560 

616 


School  Society  v.  School  Society, 

14  Conn.  469 
Schools  (The)  v.  Tatman,  13  111. 

27 
Schuyler  County,  Supervisors  of, 

V.  People,  25  111.  183 
Scituate  v.  Weymouth,  108  Mass. 

128 

Scott  V.  Mayor,  etc.  of  Manches- 
ter, 2  H.  &  N.  204  538,  576 
Scowden's  Appeal,  96  Pa.  422  94 
Seaman  v.  Mayor,  etc.,  of  N.  Y., 

80  N.  Y.  239 
Sears  v.  The  Turnpike,  7  Conn.  9 
Seele  v.  Deering,  79  Me.  343 
Seifert  v.  City  of  Brooklyn,   101 

N.  Y.  136 
Seifred  v.  Penna.  R.  R.  Co.,  206 

Pa.  399  287 

Seymour    v.    Over-River    School 

Dist.,  53  Conn.  502  212 

Shannon  v.  O'Boyle,  51  Ind.  565      444 

V.  Portsmouth,  54  N.  H.  183  218, 

238 
Shapleigh  v.  City  of  San  An- 

GELO,  167  U.  S.  646  69,  78 

Sharon  v.  Smith,  180  Mass.  539      347 
Sharpless  v.   Mayor  of   Philadel- 
phia, 21  Pa.  147 
Sheehan  v.  IMayor,  74  N.  H.  445 
Shelbourne  v.  Yuba,  21  Cal.  113 
Shelby  County  v.  Railroad,  5  Bush, 

228 
Sherbourne  v.   Yuba  County,   21 

Cal.  113 
Sherburne   v.   Portsmouth,    72 

N. H.  539  438,  442 

Sherlock  v.  Village,  68  111.  530         426 
Sherman  County  v.  Simons,   109 

U.  S.  735  504 

Shull    V.    New    BkdsaU    Co.,    15 

S.  D.  8  559 

Sibley   v.    Lumbering   Assoc,    93 

Me.  399  651 

Sikes  V.  Hatfield,  13  Gray,  353      247, 

541 
Sill  V.  Corning,  15  N.  Y.  197  24,  49 
Simon  t^.  Northup,  27  Or.  487  116 
Simpson    v.    Denison,    10    Hare, 

51  321 
V.  Hotel  Co.,  8  H.  L.  Cas. 

712  465 

Sinclair  v.  Mayor  of  Fall  River, 

198  Mass.  248  203 

Sioux  Falls  v.  Kirby,  6  S.  D.  62      560 
Siren,  The,  7  WaU.  152  568,  569 

Slark  V.  The  Highgate  Archway 

Company,  5  Taunt.  792      369,  370 
Slaughter  v.   Mobile  County,   73 

Ala.  134  68 

Slaughter  House  Cases,  16  Wall. 

36  274 

Small  V.  Damdlle,  51  Me.  359         647 
Smith  V.  Lynch,  29  Oh.  St.  261       231 


97 
219 
583 

26 

630 


Smith  V.  Mayor,  etc,  6  N.  Y.  Sup. 

Ct.  685  549 
V.  Mayor,  etc,  of  Nashville, 

12  S.  W.  924  450 
V.  Rochester,  City  of,  76  N.  Y. 

506  560,  594 

Smoot  V.  Wetumpka,  24  Ala.  112  609 
Snider  v.  St.  Paul,  51  Minn.  466  580 
Solomon,  City  of,  v.  Hughes,  24 

Kan.  211  198 

Somers  v.  State,  3  S.  D.  321  198 

Soon  Hing  v.  Crowley,  113  U.  S. 

703  274 

Southampton  &  I.  Bridge  v.  South- 
ampton, 8  E.  &  B.  801  125 
South  Carolina  v.  United  States, 

199  U.  S.  437  645 

South  Park  Com'rs  v.  Dunlevy,  91 

111.  49  11 

Soutter  V.  City  of  Madison,  15  Wis. 

30  50 

Spangler  v.  Jacoby,  14  111.  297         190 

Spaulding  v.  Lowell,  23  Pick.  71    240, 

246,  269,  421,  426 

V.  Peabody,  153  Mass.  129      337 

Speir    V.    City   of    Brooklyn,  139 

N.  Y.  6  597 

Spelman  v.  Portage,  41  Wis.  144  635 
Spier  V.  School  Directors,  50  Pa. 

163  334 

Spilman  v.  City  of  Parkers- 
burg,  35  W.  Va.  605  387 
Sprague  v.  Minon,  195  Mass.  581  276 
Springfield  Fire,  etc.  Ins.  Co. 

V.  Village  of  Keeseville,  148 

N.  Y.  46  622 

Springfield   Furniture    Co.    v. 

School  Dist.  No.  4,  67  Ark. 

236  529 

Squiers  v.  Neenah,  24  Wis.  588  642 
Stackhouse  v.  La  Fayette,  26  Ind. 

17  609 

State  V.  Auditor,  7  Oh.  St.  333  220 
State  v.  Boardman,  93  Me.  73  268 
State  V.  Brennan,  49  Oh.  St.  33      221 

V.  Bruckhauser,  26  Minn.  301  426 

V.  Burhngton,  36  Vt.  521  537 

V.  Carr,  5  N.  H.  367  230 

V  .Carroll,  38  Conn.  449  230, 

239 
V.    City   of   Eau   Claire,    40 

Wis.  533  465,  466 

V.  Clark,  52  Mo.  .508  238 

V.  Common  Council,  53  Minn. 

238  218 

V.  Copeland,  74  Minn.  371       426 

V.  Co\angton,  29  Oh.  St.  102      100 

V.  Curran,  7  Eng.  (Ark.)  321      19 

V.  Dart,  57  Minn.  261  226 

V.  Ferguson,  31  N.  J.  L.  107     167 

V.  Foster,  32  Kan.  14  224 

V.  Giles,  1  Chand.  112  160 

V.  Green,  37  Oh.  St.  227  176 

State  v.  Haben,  22  Wis.  660    105,  88 


XXIV 


TABLE   OF   CASES. 


State  V.  Hammond,  40  Mmn.  43 

V.  Hawkins,  44  Oh.St.  98 

V.  Herod,  29  la.  123 

V.  Hewitt,  3  So.  D.  187 

V.  Hoglan,  64  Oh.  St.  532 

V.  Howard,  72  Me.  459 

V.  Hunter,  38  Kan.  578 

State  v.  Jennings,  57  Oh.  St.  415 
State  V.  Jersey  City,  25  N.  J.  L.  536 
State  v.  Johnson,  114  N.  C.  846 
State  V.  Kolsem,  130  Ind.  434 
V.  Lake  Koen  Co.,  63  Kan. 


394 


V.  Leiber,  11  la.  407 


State  v.  Mackie,  74  Atl.  759 
State  V.  Mahner  43  La.  Ann.  496 

V.  McDaniel,  22  Oh.  St.  254 

V.  Milne,  36  Neb.  301 

V.    Milwaukee,    City   of, 


25 


Wis.  122 

V.  Nelson,  66  Minn.  166 

V.  North,  42  Conn.  79 

V.  Paterson,  5  Vroom,  163 

V.  Powers,  69  Minn.  429 

V.  Priester,  43  Mum.  373 

V.  Richmond,  26  N.  H.  232 

V.  Rogers,  22  Or.  348 

State  v.  Rose,  74  Kan.  262 
V.  St.  Louis  County  Court, 

34  Mo.  546  101, 

State  V.  Schuchardt,  42  La.  Ann. 

49 

V.  Seavey,  22  Neb.  454 

V.  Shawnee  County,  28  Kan. 

431 


—  V.  Smith,  35  Neb.  13 

—  V.  Smith,  14  Wis.  497 

—  V.  Spaulding,  102  la.  639 

—  V.  State  Medical  Examining 
Board,  32  Minn.  324 

—  V.  Stevens,  21  Kan.  210 

—  V.  Teal,  72  Minn.  37 

—  V.  Tenant,  110  N.  C.  609 

—  V.  Trenton,  36  N.  J.  L.  79 

—  V.  Town  of  Winter  Park,  25 
Fla.  371 

V.  Walbridge,  62  Mo.  App. 


162,  69  Mo.  App.  657 
—  V.  Walton,  62  Me.   106 

V.  Welsh,  109  la.  19  225, 


State  v.  Williams,  68  Conn.  131 

V.  WiLLi.\5is,  110  Tenn.  549 

State  V.  Wilson,  30  Kan.  661 

V.  Woodbury,  35  N.  H.  230 

V.  Woodward,  23  Vt.  92 

State  Bank  of  Oliio  v.  Knoop,  16 
How.  369  132, 

State  Centre  v.  Barenstein,  66  la. 
249  272, 

State  ex  rel.  v.  Dering,  84  Wis.  585 
State   ex   rel.    v.    Walbridge,    119 
Mo.  383  250, 

State  ex  rel.  Carondelet  v.  New  Or- 
leans, 30  La  Ann.  129 


426 
220 
315 
219 
218 
589 
100 
219 
226 
280 
100 

133 
199 
211 
272 
224 
238 

50 
283 
212 
276 
426 
185 
217 
197 
223 

100 

275 
101 

133 
219 
160 
213 

426 
73 
426 
272 
430 

13 

219 
328 
226 
114 
172 
224 
368 
445 

323 

275 

272 

251 
664 


State  ex  rel.  Carriere  v.  City,  36 

La.  Ann.  687  664 

State  ex  rel.  De  Leon  v.  City,  34 

La.  Ann.  477  664 

State  ex  rel.  Geake  v.  Fox,  158 

Ind.  126  15,  100 

State  ex  rel.  Johnson  v.  Brown, 

111  Minn.  80^  424 

State  ex  rel.  Kennelly  v.  Jer- 
sey City,  57  N.  J.  L.  293  261 
State  ex  rel.  Marchand  v.  City 

OF  New  Orleans,  37  La.  Ann. 

13  662 

State  ex  rel.  Moore  v.  City,  32  La. 

Ann.  726  664 

State  ex  rel.  Wis.  Tel.  Co.  v.  Janes- 

ville  St.  R.  Co.,  87  Wis.  72  314 

V.  Sheboygan,  111  Wis.  23      313, 

315,  316 
State  ex  rel.  Wood  v.  Schweickardt, 

109  Mo.  496  630 

State    Railroad    Tax    Cases,    92 

U.  S.  575  539 

Steckert   v.  East   Saginaw,   22 

Mich.  104  188 

Steele  v.  Deering,  79  Me.  343  652 
Stetson    V.    Kempton,    13    Mass. 

272  241,  242,  244,  246,  317,  323, 

327,  533 
Steubenville  v.   Culp,   38  Oh.  St. 

18  238 

Stoddard  v  Winchester,  157  Mass. 

567  588 

Stone  V.  Charlestown,  114  Mass. 

214  123 

Strahan  v.  Malvern,  79  la.  454  420 
Strauss,   Matter  of,  44  App.  Div. 

509  343 

Strauss  v.  Pontiac,  40  111.  301  34 

Street  Railway  Co.  v.  Covington, 

9  Bush,  127  302 

Strock  v.  East  Orange,  77  Atl. 

Rep. 1051  440 

Strock  V.  East  Orange,  77  N.  J.  L. 

382  440 

Strosser  v.  City  of  Fort  Wayne, 

100  Ind.  443  13 

Stuhr  V.  Curran,  44  N.  J.  L.  181  239 
Sugar  V.  Monroe,  108  La.  677  420 

Sullivan  v.  Holvoke,  135  Mass.  273  556, 

588 
Sun  Printing  &  Publishing  Assoc. 

V.  Mayor,  etc.    of    N.  Y.,   152 

N.  Y.  257  345 

Supervisors  v.  Schenk,  5  Wall.  784  483 
Supervisors  of  Rock  Island  v. 

U.  S.   ex.   rel.   State   Bank,   4 

Wall.  435  657,  535 

SuTLiFF  V.  Lake  County  Commis- 
sioners. 147  U.  S.  230  495,  .506,  508 
Sutton  V.  Clarke,  6  Taunt.  29  533 

Swain  v.  Seamens,  9  Wall.  254  47 

Swift  V.  Falmouth,  167  Mass.  115  337 
Swindell  v.  State,  143  Ind.  153     178 


TABLE   OF   CASES. 


XXV 


Tacoma  Hotel  Co.  v.  Tacoma  Light 
&  Water  Co.,  3  Wash.  St.  316 

Taggart  v.  Fall  River,  170  Mass. 
325 

Worcester,   123  ]\Iass. 


Taintor  v. 

311 
Takoma  v 
Tappan  y 


Lillis,  4  Wash.  797 
School  District,  44 

Mich.  500 
Tash  V.  Adams,  10  Cush.  252   246, 
Taxpayers    v.    New    Orleans,    33 

La.  Ann.  568 
Taylor  v.  City  of  Fort  Wayne,  47 

Ind.  274 

».  Peckham,  8  R.  I.  349 

Tebbetts  v.  Dowd,  23  Wend.  379 
Ten  Eyck  v.  Delaware  &  R.  C.  Co., 

3  Harr.  (X.  J.)  200 
Terrett  v.  Taylor,  9  Cr.  43 
Texarkana  Gas  &  Electric  Co. 

V.  Texarkana,  123  S.  W.  213 
Thacher  v.  Miller,  13  Mass.  270 
Thayer  v.  Boston,  19  Pick.  511 

576,  581,  603, 
Thomas    v.    Richmond,    12    Wall. 

349 
Thompson  v.  Abbott,  61  Mo.  176 
Thompson  v.  Allen  County,  115 

U.  S.  550 
Thompson  v.  Moran,  44  Mich.  602 
Thompson    NA^^GATION    Co.    v. 

City  of  Chicago,  79  Fed.  984 
Thomson  v.  City  of  Boonville   61 

Mo.  283 

V.  Elton,  109  Wis.  589 

Thorndike  I'.  Camden,  82  Me.  39 

Thurston  v.  Clark,  107  Cal.  285 
Tindley  v.  Salem,  137  Mass.  171 

125,  556,  589,  630, 
Tioga    Railroad    v.    Blossbm-g    & 

Corning  Raiboad,  20  Wall.  137 
Tisdale  v.  Norton,  8  Met.  292 
Toledo,  Town  of,  v.  Edens,  59  la. 

352 
Toledo,  Wabash,  &  W.  Ry.  Co.  v. 

City  of  Jackson\'ille,  67  111.  37 
Torrent    v.   Common    Council   of 

Muskegon,  47  Mich.  115 
Traction  Co.  v.  EUzabeth,  58  N.  J. 

L.  520 
Train  v.  Boston  Disinfecting  Co., 

144  Mass.  523 
Tr.\'\'elers'      Insurance      Com- 
pany V.  Johnson  City,  99  Fed. 

663 
Tremain  v.  Cohoes  Co.,  2  Comst. 

163 
Trenton    Horse   Railroad    Co.    v. 

Trenton,  24  Vroom,  132 
Trester  v.  Sheboygan,  87  Wis.  496 
Trumbo  v.  People,  75  III.  561 


463 

589 

627 
339 

204 
327 

665 

13 
537 
344 

129 

88 

433 

172 

538, 

642 

515 

47 

673 
124 

566 

560 
413 
326, 
469 
225 
124, 
631 

539 
577 

34 

265 

354 

309 

274 

524 

558 

262 
414 
230 


Trustees,  etc.,  v.  Mayor,  etc.,  33 

N.  J.  L.  13  452 

Trustees  of  Schools  v.  Cowden,  240 

111.  39  74 

Trustees  of  Schools  v.  Tatman,  13 

111.  27  75 

Tugman  v.  City  of  Chicago,  78  lU. 

405  265 

Tuttle  v.  Polk,  92  la.  433  403 

Twyman  v.  Board  of  Council  of 

the  City  of  Frankfort,  117  Ky. 

518  592 

U. 

Ukiah  V.  Ukiah  W.  &  I.  Co.,  142 

Cal.  179  644 

Union   Depot   &  Railroad   Co.  v. 

Smith,  16  Colo.  361  355,  365 

Union  Pac.  Ry.  Co.  v.  Chicago,  R. 

I.  &  P.  Ry.  Co.,  51  Fed.  309     465, 

466 
Union  Pacific  R.  R.  v.  York  Co., 

10  Neb.  612  ^       423 

United  States  v.  Hartwell,  6  Wall. 

385  213,  225 

V.  Raikoad,  17  WaU.  322     42,  132, 

540 
V.  The  Malek  Adhel,  2  How. 

210  567,  569 

United  States  Bank  v.  Dandridge, 

12  Wlieat.  70  518,  519 

United  States  Bank  v.  Kendall, 

179  Fed.  914  80 

University  of  Maryland  v.  Williams 

9  G.  &  J.  365  129 

Uppington  v.  New  York,  165  N.  Y. 

223  550 


Valparaiso,  City  op,  v.  Gardner, 

97  Ind.  1  381 

Vancoxjver  v.  Wintler,  8  Wash. 

378  195 

Vandercook  v.  Williams,  106  Ind. 

345  235 

Vandine,  Petitioner,  6  Pick.  187  252, 

260,  589 
Van  Hostrop  v.  Madison  City,  1 

Wall.  291  484 

Van-Orsdale  v.  Hazard,  3  Hill,  243  168 
Venice  v.  Murdock,  92  U.  S.  494  506 
Vidal  V.  Girard,  2  How.  61  411 

Milage  of  Lewisville  v.  Webster, 

108  111.  414  281 

Vincennes,    Citv    of,   v.   Citizen's 

Gaslight  Co.,l32  Ind.  114     126,  463 
Vincent  v.  Nantucket,  12  Cush.  103 

347,  349 
Virginia  v.  The  Justices,  2  Virginia 

Cases,  9  658 

VoN  Hoffman  v.  Quincy,  4  Wall. 

535  659,  49,  68,  664,  670 


XXVI 


TABLE    OF   CASES. 


Von  Schmidt  v.  Widber,  105  Cal. 

151  427 

Voss  V.  Waterloo  Water  Co.,  163 

Ind.  69  408 

W. 

Wade  V.  Oakmont  Boro.,  165  Pa. 

479  407 

V.  Richmond,  IS  Gratt.  583        23 

Wagner  v.  City  of  Rock  Island,  146 

111.  139  463 

Waite   V.  Santa  Cruz,    184  U.   S. 

302  510 

Wakefield  v.  New-port,  62  X.  H. 

624  545 

WaLCOTT       v.        iNHABriANTS       OF 

Sw-.-uiPSCOTT,  1  Allen,  101  540 

Waldron  v.  City  of  Ha\'erhill, 

143  Mass.  582  555,  588 

Walker  v.  Swampscott,  1  All.  101  581 
WaUdey  v.  City  of  Muscatine,  6 

WaU.  481  674 

WaUa  Walla  City  v.  WaUa  WaUa 

Water  Company,  172  U.  S.  1  428 
Walsh  V.  Mayor,  etc.  of  New  York, 

113  N.  Y.  142  379 

Waltham,  Towti  of,  v.  Kemper,  55 

111.  346  11 

Wardlow  v.  Mayor  of  New  York, 

19  N.  Y.  Supp.  6  225 

Waring  v.  Mayor,  24  Ala.  701  24 

Warren  v.  Charlestown,  2  Gray, 

104  19 

V.  Lyons,  22  la.  351  88 

V.  Alayor,  etc.,  of  Charles- 

towTi,  2  Gray,  84  322 

Washburn  Co.   v.   Thompson,  99 

Wis.  585  416 

Washen    v.    Bullitt    County,    110 

U.  S.  558  117 

Waters  v.  Bon\^ouloir,  172  Mass. 

286  336 

Wa}'ne  Coimty  v.  Benoit,  20  Mich. 

176  238 

Webb  V.  Mayor  of  New  York,  64 

How.  Pr.  10  124 

Webster  v.  Douglas  Co.,  102  Wis. 

181  413 

V.  Harwinton,  32  Conn.  131     116 

Weet  V.  Brockport,  16  N.  Y.  161  144, 
558,  604,  609,  610,  613 
Weightmanv.  Washington,  1  Black, 

39  539,  610 

Weismer  v.  Village  of  Douglas,  64 

N.  Y.  91  346 

Weitz  V.  Ind.  Dist.,  79  Iowa,  423  419 
Welch  V.  Ste.  Gene\'ieve,  1  Dill. 

130  81 

Welles  v.   Battelle,   11   Mass. 

477  170 

Wells  V.  City  of  Weston,  22  Mo. 

384  104 

Welsh  V.  WUson,  101  N.  Y.  254        431 


Wentworth  v.  WTiittemore,  1  Mass. 

471  383 

Westberg  v.  Kansa.s,  64  Mo.  493  238 
Westbrook  v.  Deering,  63  Maine, 

231  327 

West  Chicago  Park  Commis- 
sioners V.  Chicago,  152  111.  392  8 
West    Chicago    Park    Com'rs    v. 

Weston  U.  T.  Co.,  103  111.  33  11 

Western  College  of  Medicine  v.  City 

of  Cleveland,  12  Ohio  St.  375  619 
Western  S.  F.  Soc.  v.  City  of  Phila- 
delphia, 31  Pa.  175         50,  122,  124, 

456,  538,  646 
Western  U.  Tel.  Co.  v.  Philadelphia 

(Pa.),    21    Am.   &  Ang.    Corp. 

Cases,  40  313 

Westervelt  v.  Gregg,  12  New  York, 

209  671 

West  Hartford,  Town  of,  v.  Board 

of  Water  Com'rs,  44  Conn.  360  449 
Weston  V.   City  of   Sj-racuse,   17 

N.  Y.  110  383 

West  Roxbury  v.  Stoddard,  7  AJlen, 

158  535 

Weymouth  &  B.  F.  Dist.  v.  County 

Com'rs,  108  Mass.  142  123 

Wheeler  v.  City  of  Cincinnati, 

19  Ohio  St.  19  618 

Wheeler  v.  Gil.sxjm,  73  N.  H.  429  545 
^^^leeler  v.  Phila.,  77  Pa.  338  456 

V.  Troy,  579 

V.  Worcester,  10  Allen,  591       537 


^^^leelock  V.  Lowell,  196  Mass.  220  203 
White  V.  Franklin  Bank,  22  Pick. 

181  515 

V.  PhiUipston,  10  Met.  108      536, 

541 
V.  Town  of  Stamford,  37  Conn. 

586  422 

\Miitier  v.  Sanborn,  38  Me.  32  33 

WTiitmore  t'.  Orono  Pulp  &  Paper 

Co.,  91  Me.  297  599 

^Tiitney  v.  Stow,  111  Mass.  368     123, 

127 
Whitson  V.  The  City  of  Franklin, 

34  Ind. 392  277 

Widington's  Case,  1  Lev.  23  166 

Wilcox  V.  McCleUan,  185  N.  Y.  9     429 

V.  People,  90  111.  186  11 

Wild  v.  Paterson,  47  N.J.  L.  406  620 
Wilde  V.  New  Orleans,  12  La.  Ann. 

15  642 

Willard  v.  Killingworth,  8  Conn. 

247  185,  341 

V.  NewburjT)ort,  12  Pick.  227   241, 

242,  246 
Williams  v.  Da^^dson,  43  Tex.  1       372 

V.  Eggleston,  170  U.  S.  304    43, 

132 

V.  Gloucester,  148  Mass.  256     202 

V.  Grand  Rapids,  59  Mich.  51       7 

Williamsport    v.    Commonwealth, 

84  Pa.  St.  487  11 


TABLE    OF    CASES. 


XXVU 


Willimantic  School  Society  v.  First 

School  Society,  14  Conn.  457  30 
Wilson  V.  Board  of  Trustees,  133 

111.  443  39 

- —  V.  Edmonds,  24  N.  H.  517         331 

V.  Mineral  Point,  39  Wis.  160     642 

Wilson  v.  Mitchell,  17  S.  D.  515  558 
Wilson  V.  Salamanca,  99  U.  S.  499  506 
Winbigler  v.  Los  Angeles,  45  Cal. 

36  537,  644 

Windfall  Mfg.  Co.  v.  Patterson,  148 

Ind.  414  599 

Windham  v.  Portland,  4  Mass.  389     23, 

535 
Wineburgh     Advertising     Co.     v. 

Murphy,  195  N.  Y.  126  277 

Winegar  v.  Roe,  1  Cow.  258  168 

Winona    v.    School    District,    40 

Minn.  13  33,  34 

Winthrop  v.  New  England  Choco- 
late Co.,  180  Mass.  464  275 
Wisconsin  Telephone  Company 

V.  Milwaukee,  126  Wis.  1  312 

Wis.  Tel.  Co.  V.  Oshkosh,  62  Wis. 

32  313,  315,  316 

Wistar  v.  Philadelphia,  80  Pa.  St. 

505  266 

Wixon  V.  Newport,  13  R.  I.  454  651 
Wolff  V.  District  of  Columbia,  196 

U.  S.  152  432 

V.  New  Orleans,  103  U.  S.  358     68, 

75,  664 
Wood  V.  Cutter,  138  Mass.  149         203 


Wood  V.  Milton,  197  Mass.  531  202 
Woodlawn   Cemetery  v.   Everett, 

118  Mass.  354  128,  281 

Woodruff  V.  Catlin,  54  Conn.  277  117 
Woodward  v.  Boston,   115  Mass. 

81  650 

Worcester  v.  Western  R.  R.,  4  Met. 

564  129 
V.  Worcester  S.  Ry.,  196  U.  S. 

539  43,  44 

Worden  v.  City  of  New  Bedford, 

131  Mass.  23        632,  124,  420,  421, 

465,  651 
Workman  v.  New  York,  180  U.  S. 

552  569 

Wormington  v.  Pierce,  22  Ore.  606  395 
Wrought  Iron  Bridge  Co.  v.  Board 

of  Com'rs  of  Hendricks  County, 

48  N.  E.  1050  520 
V.  Town  of  Attica,  119  N.  Y. 

204  344 

Wyatt  v.  Rome,  105  Ga.  312  585 


Yarmouth  v.  Skillings,  45  Me.  141 

Yick  Wo  V.  Hopkins,  118  U.  S.  356 
Yocum  V.  Hotel  St.  George  Co.,  18 

Abb.  [N.  C]  340 
Yorty  V.  Paine,  62  Wis.  154 
Young  V.  Clarendon  Township,  132 

U.  S.  340 


22, 

24 

276 

297 
231 

373 


CASES 


ON 


MUNICIPAL  COKPORATIONS. 


CHAPTER  I. 
THE  NATURE  OF  MUNICIPAL   CORPORATIONS. 


Section  I.  —  Distinction  between  Municipal  Corporations  and 
.^^j^      ^'^'^'^^'^^^  other  Corporations. 

»^    <^>^^i!r^^^  CUDDON  V.   EAST  WICK. 
ur-***^*^  *^V<>^*^  1704.    1  Salk.  192. 

^  ^^^•-^PON  a  habeas  corpus^was  returned  an  action  of  debt  for  the  penalty 
^^  of  a  by-law  made  by  the  comraon  council  of  the  city  of  London.     The 

'»^**''^  by-law  was,  that  whereas  the  company  and  fellowship  of  porters  had 
been  time  out  of  mind  a  company  and  fellowship,  it  was  ordained,  that 

-^x.    they  should  still  remain  and  continue  forever  a  company  and  fellowship, 
and  that  no  master  of  any  boat,  &c.  from  place  to  place,  &c.  should 

\       unload  or  send  on  shore  any  goods,  but  by  such  persons  as  were  free 
of  the  said  company :  to  which  it  was  objected,  1st,  That  the  City  of 

^  '    London  could  not  make  a  corporation.    2dly,  That  a  corporation  could 
not  make  a  by.law  to  bind  strangers,  unless  founded  on  public  conven- 
ience.    Et  per  GM,r.     The  city  of  London  cannot  make  a  corporation, 
for  that  can  only  be  created  by  the  crown  ;  but  this  is  only  a  frater- 
nity,  not  a  corporation,  and  a  corporation  may  make  a  fraternity!     AS 
corporation  is  properly  an  investing  the  people  of  the  place  with  the  / 
local  government  thereof,  and  therefore  their  law  shall  bind  strangers  ;  } 
but  a  fraternity  is  some  people  of  a  place  united  together,  in  respect 
of  a  mystery  and  business,  into  a  company,  and  their  laws  and  ordi- 
nances cannot  bind  strangers,  for  they  have  not  a  local  power  or 
government. 


2  INHABITANTS   OF   SCHOOL   DISTRICT  IN   KUMFORD   V.   WOOD.  | 

INHABITANTS   OF   THE   FOURTH   SCHOOL  DISTRICT   IN 

RUMFORD   V.    WOOD.  1^^'^^'*^  '^^-^ 

1816.     13  Mass.  193.1  <?^3-^<ji}  ^^**^- 

This  was  an  action  of  the  case  in  which  the  plaintififs,  by  the  name  ^T/^* 
of  "  The  inhabitants  of  the  fourth  school  district  in  the  town  of  RumfordJ^^ 
in  the  county  of  Oxford,"  declared  upon  a  promise  and  undertaking 
of  the  defendant,  to  erect  a  school  house  for  the  use  of  the  plaintiffs 


upon  the  defendant's  land,  and  to  make  a  lease  of  the  same  land  to  the 
plaintiffs,  for  the  consideration  of  170  dollars  paid  him  by  the  plaintiffs. 
The  declaration  contained  also  a  count  for  money  had  and  received  by 
the  defendant  to  the  use  of  the  plaintiffs. 

The  defendant  pleaded  in  abatement,  that  the  plaintiffs  are  not  a 
corporation  with  power  to  sue.  ~" 

The  plaintiffs  replied  that,  by  a  law  of  this  commonwealth,  entitled 
"  An  act  to  provide  for  the  instruction  of  youth,  and  for  the  promotion 
of  good  education"  (Stat.  1789,  c.  19),  and  by  the  several  laws  en- 
acted in  addition  to  the  act  aforesaid,  they  are  duly  invested  with  all 
the  powers  of  corporations,  necessary  to  enable  them  to  maintain  their 
action  &c. 

To  this  replication  the  defendant  demurred  generally,  and  the  plain- 
tiffs joined  in  demurrer. 

Parker,  C.  J.  This  cause  has  been  some  time  before  us  ;  there 
having  been,  at  the  several  consultations  we  have  had  upon  it,  doubts 
upon  the  mind  of  some  or  other  of  the  court,  as  to  the  effect  of  the 
arguments  submitted  in  writing  :  the  counsel  on  both  sides  having  well 
considered  and  ingeniously  applied  the  legal  principles  and  reasoning 
belonging  to  the  subject. 

We  are  all,  finally,  of  opinion,  that  the  plea  in  abatement  is  bad, 
and  that  a  judgment  of  resjyondeas  ouster  must  be  entered.  The  ob- 
jection contained  in  a  plea  is,  that  the  plaintiffs,  who  are  styled  the 
inhabitants  of  the  fourth  school  district  in  Rumford,  have  not  that 
legal  entity  and  capacity,  which  entitle  them  to  nialntain  this  or  any 
other  action.  In  other  words,  that  they  do  aOt  compose  a  corporate 
body :  but  are  merely  individuals,  entjiled  to  assemble  for  particular 
purposes,  and  to  transact  busines^-'iSy  vote  in  the  same  manner  as 
towns :  but  with  no  power  to^jssis^e  contracts,  or  to  enforce  them  by  a 
suit  at  law,  except  perJiafJs  in  the  special  instance  pointed  out  in  the 
several  statutes  wlji<ffi^egulate  them. 

That  they  gj(>€not  bodies  politick  and  corporate,  with  the  general 
powers  of  corporations,  must  be  admitted ;  and  the  reasoning  and 
authorities,  advanced  to  shew  this  defect  of  power,  are  conclusive. 
The  same  may  be  said  of  towns  and  other  municipal  societies,  which, 
although  recognized  by  various  statutes  and  by  immemorial  usage,  as 
persons  or  aggregate  corporations,  with  precise  duties  which  may  be 

1  Arguments  omitted.  —  Ed. 


METROPOLITAN   RAILROAD   V.    DISTRICT   OF  COLUMBIA.  3 

enforced,  and  privileges  which  may  be  maintained,  by  suits  at  law; 
are  yet  deficient  in  many  of  the  powers  incident  to  the  general  charac- 
ter of  corporations. 

They  may  be  considered  under  our  institutions  as  qua  corporations ; 
with  limited  powers  coextensive  with  the  duties  imposed  upon  them  By 
statute  or  usage:  but  restrained  from  a  general  use  of  the  authority,  i  y  rt^^vi-., 
which  belongs  to  these  metaphysicaLjJersons  by  the  common  law.  The  i. 
same  maj'  be  said  of  all  the  numerous  corporations,  which  have 
been  from  time  to  time  created  by  various  acts  of  the  legislature : 
all  of  them  enjoying  the  power,  which  is  expressly  bestowed  upon 
them ;  and  perhaps,  in  all  instances  where  the  act  is  silent,  possessing 
by  necessary  implication  the  authority,  which  is  requisite  to  execute 
the  purposes  of  their  creation. 

They  differ  in  character  also  from  those  corporations,  which  exist  at. 
common  law,  in  some  particulars.  It  is  not  necessary  that  our  muni-1 
cipal  corporations  should  act  under  seal,  in  order  to  bind  themselves,! 
or  obligate  others  to  them.  A  vote  of  the  body  is  sufficient  for  this 
purpose :  and  this  mode  has  prevailed  with  the  proprietors  of  common 
and  undivided  land,  even  in  the  disposition  of  their  real  property, 
contrary  to  the  general  provision  of  law,  respecting  the  transfer  of  real 
estate.  It  will  not  do,  therefore,  to  apply  the  strict  principles  of  law 
respecting  corporations,  in  all  cases,  to  these  aggregate  bodies,  which 
are  created  by  statute,  in  this  commonwealth. 

By  the  several  statutes,  which  have  been  passed  respecting  school 
districts,  it  is  manifest  that  the  legislature  has  supposed,  that  a  divi- 
sion of  towns,  for  the  purpose  of  maintaining  schools,  will  promote  the 
important  object  of  general  education :  and  this  valuable  object  of 
legislative  care  seems  to  require,  in  construing  their  acts,  that  a  liberal 
view  should  be  had  to  the  end  intended  to  be  effected. 

Respondeas  ouster  awarded. 

^-■^    METROPOLITAN   RAILROAD  v.  DISTRICT   OF   COLUMBIA,  ^uf.^, 
^tu^:,    ^^^"^  1889.     132/7.5.1.  if  ^i'iff/      •^'    t>..vr^ 

Bradley,  J.^  .  .  .  It  is  contended  by  the  plaintiff  that  it  (the  $^<S._^  1 
District  of  Columbia)  is  not  amenable  to  the  statute  of  limitations,  for  ^JU..«Jjk». 
three  reasons  :  first,  because  of  its  dignity  as  partaking  of  the  sover-  fJ^ut^^^^A 
eign  power  of  government;  secondly,  because  it  is  not  embraced  in  ■ViJi,,^.,  , 
the  terms  of  the  statute  of  limitations  in  force  in  the  District;  and,  v*/--^jli^  . 
thirdly,  because  if  the  general  words  of  the  statute  are  sufficiently  V— ^-a^jr^. 
broad  to  include  the  District,  still,  municipal  corporations,  unless  l-lcjt^A  ( 
specially  mentioned,  are  not  subject  to  the  statute.  /}/"  T^  ' 

1.  The  first  question,  therefore,  will  be,  whether  the  District  of    c-TCI^I^ 
1  Only  an  extract  from  the  opinion  is  given.  —  Ed.  i^  *^.    *^  c^  Vv,mu^ 


4  METROPOLITAN   RAILEOAD   V.   DISTRICT   OF   COLUMBIA. 

Columbia  is,  or  is  not,  a  municipal  body  merely,  or  whether  it  has  such 
a  sovereign  character,  or  is  so  identified  with  or  representative  of  the 
sovereignty  of  the  United  States  as  to  be  entitled  to  the  prerogatives 
and  exemptions  of  sovereignty.* 

Under  these  different  changes  the  administration  of  the  affairs  of 
the  District  of  Columbia  and  city  of  Washington  has  gone  on  in  much 
the  same  way,  except  a  change  in  the  depositaries  of  power,  and  in 
the  extent  and  number  of  powers  conferred  upon  them.  Legislative 
powers  have  now  ceased,  and  the  municipal  government  is  confined  to 
mere  administration.  The  identity  of  corporate  existence  is  continued, 
and  all  actions  and  suits  for  and  against  the  District  are  preserved 
unaffected  by  the  changes  that  have  occurred. 

In  view  of  these  laws,  the  counsel  of  the  plaintiff  contend  that  the 
government  of  the  District  of  Columbia  is  a  department  of  the  United 
States  government,  and  that  the  corporation  is  a  mere  name,  and  not 
a  person  in  the  sense  of  the  law,  distinct  from  the  government  itself. 
We  cannot  assent  to  this  view.  It  is  contrary  to  the  express  language 
of  the  statutes.  That  language  is  that  the  District  shall  '^  rpjnnin  nnrl 
continue  a  municipal  corporation,"  with  all  rights  of  action  and  suits 
for  and  against  it.  If  it  were  a  department  of  the  government,  how 
could  it  be  sued?  Can  the  Treasury  Department  be  sued?  or  any 
other  department?  We  are  of  opinion  that  the  corporate  capacity  and 
corporate  liabilities  of  the  District  of  Columbia  remain  as  before,  and 
that  its  character  as  a  mere  municipal  corporation  has  not  been 
changed.  The  mode  of  appointing  its  officers  does  not  abrogate  its 
character  as  a  municipal  body  politic.  We  do  not  suppose  that  it  is 
necessary  to  a  municipal  government,  or  to  municipal  responsibility, 
that  the  officers  should  be  elected  by  the  people.  Local  self-goveru- 
ment  is  undoubtedly  desirable  where  there  are  not  forcible  reasons 
against  its  exercise.  But  it  is  not  required  by  any  inexorable  principle. 
All  municipal  governments  are  but  agencies  of  the  superior  power  of 
the  StaJbe  or  government  by  wmcu  they  are  constituted,  and  are  in- 
vested with  only  such  subordinate  powers  of  local  legislation  and  con- 
trol  as  the  superior  legislature  sees  lit  to  confer  upon  them.  TFe 
form  of  those  agencies  and  the  mode  of  appointing  officials  to  execute 
them  are  matters  of  legislative  discretion.  Commissioners  are  not 
unfrequently  appointed  by  the  legislature  or  executive  of  a  State  for 
the  administration  of  municipal  affairs,  or  some  portion  thereof,  some- 
times temporarily,  sometimes  permanently.  It  may  be  demanded  by 
motives  of  expediency  or  the  exigencies  of  the  situation ;  by  the 
boldness  of  corruption,  the  absence  of  public  order  and  security,  or 
the  necessity  of  high  executive  ability  in  dealing  with  particular  popu- 
lations. Such  unusual  constitutions  do  not  release  the  people  from 
the  duty  of  obedience  or  from  taxation,  or  the  municipal  body  from 
those  liabilities  to  which  such  bodies  are  ordinarily  subject.     Protec- 

1  The  Court  here  descpibed  the  various  changes  in  the  local  government  of  the 
District. 


METROPOLITAN   RAILROAD   V.   DISTRICT   OF   COLUMBIA.  5 

tion  of  life  and  property  are  enjoyed,  perhaps  in  greater  degree  than 
they  could  be,  in  such  cases,  under  elective  magistracies ;  and  the 
government  of  the  whole  people  is  preserved  in  the  legislative  repre- 
sentation of  the  State  or  general  government.  "  Nor  can  it  in  prin- 
ciple," said  Mr.  Justice  Hunt  in  the  Barnes  case,  "be  of  the  slightest 
consequence  by  what  means  these  several  officers  are  placed  in  their 
position,  whether  they  are  elected  by  the  people  of  the  municipality  or 
appointed  by  the  President  or  a  governor.  The  people  are  the  recog- 
nized source  of  all  authority,  State  and  municipal,  and  to  this  authority 
it  must  come  at  last,  whether  immediately  or  by  a  circuitous  process." 
Barnes  v.  District  of  Columbia,  91  U.  S.  540,  545. 

One  argument  of  the  plaintiff's  counsel  in  this  connection  is,  that  the 
District  of  Columbia  is  a  separate  State  or  sovereignty  according  to  the 
definition  of  writers  on  public  law,  being  a  distinct  political  society. 
This  position  is  assented  to  by  Chief  Justice  Marshall,  speaking  for 
this  court,  in  the  case  of  Hepburn  v.  -Ellzey,  2  Cranch,  445,  452,  where 
the  question  was  whether  a  citizen  of  the  District  could  sue  in  the 
circuit  courts  of  the  United  States  as  a  citizen  of  a  State.  The  court 
did  not  deny  that  the  District  of  Columbia  is  a  State  in  the  sense  of 
being  a  distinct  political  community  ;  but  held  that  the  word  "  State  " 
in  the  Constitution,  where  it  extends  the  judicial  power  to  cases  be- 
tween citizens  of  the  several  "States,"  refers  to  the  States  of  the 
Union.  It  is  undoubtedly  true  that  the  District  of  Columbia  is  a 
separate  political  community  in  a  certain  sense,  and  in  that  sense  may 
be  called  a  State;  but  the  sovereign  power  of  this  qualified  State  is 
not  lodged  in  the  corporation  of  thfi  r)iat.riof.  nf  Columbia,  but  in  the 
government  of  the  Unit.pd  Stntps.  Its  supreme  legislative  body  is 
Congress.  The  subordinate  legislative  powers  of  a  municipal  character 
which  have  been  or  may  be  lodged  in  the  city  corporations,  or  in  the 
District  corporation,  do  not  make  those  bodies  sovereign.  Crimes 
committed  in  the  District  are  not  crimes  against  the  District,  but 
against  the  United  States.  Therefore,  whilst  the  District  may,  in  a 
sense,  be  called  a  State,  it  is  such  in  a  very  qualified  sense.  No  more 
than  this  was  meant  by  Chief  Justice  Taney,  when,  in  the  Bank  of 
Alexandria  v.  i)^er,  14  Pet.  141,  146,  he  spoke  of  the  District  of  Co- 
lumbia as  being  formed,  by  the  acts  of  Congress,  into  one  separate 
political  community,  and  of  the  two  counties  composing  it  ("Washing- 
ton and  Alexandria)  as  resembling  different  counties  in  the  same 
State  ;  by  reason  whereof  it  was  held  that  parties  residing  in  one 
county  could  not  be  said  to  be  "  beyond  the  seas,"  or  in  a  different 
jurisdiction,  in  reference  to  the  other  county,  though  the  two  counties 
were  subject  to  different  laws. 

We  are  clearly  of  opinion  that  the  plaintiff  is  a  municipal  corpora- 
tion, having  a  right  to  sue  and  be  sued,  and  subject  to  the  ordinary 
rules  that  govern  the  law  of  procedure  between  private  persons. 


R 


o'leaky  v.  boaed  of  fire  and  avatee  commissioners.   \jO   (^'^ 

^■""■^-T^-^   O'LEARY  V.  BOARD    OF   FIRE   AND   WATER  ^'x//  fl 

-2^^^o^_  COMMISSIONERS.  --<Ztl^ 

1890.     79J//ci.  281.  ^^^*^ -T^^^^hO 

♦^^'**'**^i'  Campbell,  J.^  .  .  .  The  defendant  was  incorporated  by  "  An  act  to  J7^ 
I  ^.Vo-^  create  a  board  of  water  commissioners  in  the  village  of  Marquette,  ?^^ 
!•-,-. .oy-(o .  and  to  define  its  powers  and  duties,"  approved  March  2,  1869.  The  T^-^ 
5^  Sij^  subsequent  incorporation  of  the  city  merely  made  the  necessary  changes  "^^ 
^  .  to  meet  the  change  in  government.     Although  not  in  terms  declared  j-j..^ 

to  be  a  corporation,  the  powers  given  them  are  in  such  language  as  to  /  «  « 
make  them  such.  They  are  liable,  as  well  as  competent,  to  be  im- 
pleaded, to  make  contracts,  and  hold  property,  to  have  a  seal,  and 
make  b3'-laws,  and  generally  "  to  do  all  legal  acts  which  maj^  be  nec- 
essary and  proper  to  carry  out  the  effect,  intent,  and  object  of  this 
aet."  As  all  of  their  powers  are  confined  legally  to  the  scope  of  the 
statute,  it  is  necessary  to  consider  them.  The  members  derive  their 
appointment  from  the  corporate  body  of  the  city,  and  not  from  the 
people.     By  section  6  they  are  required  — 

"To  examine  and  consider  all  matters  relative  to  supplying  said 
[city]  of  Marquette  with  a  sufficient  quantity  of  pure  and  wholesome 
water  for  domestic  use,  also  to  provide  suitable  and  efficient  means  for 
the  exting-uishment  of  fires." 

This  is  the  general  and  sole  purpose  of  all  their  incidental  powers. 
By  subsequent  sections  they  are  empowered,  under  approval  of  the 
electors  by  vote  on  that  question,  to  issue  bonds  to  a  limited  extent, 
and,  if  unable  to  pay,  to  renew  them.  They  are  authorized  to  report 
to  the  city  council,  which  is  empowered,  but  not  expressly  required,  to 
raise  by  tax  any  sums  beyond  the  revenue  of  the  board  necessary  to 
pay  principal  or  interest  on  the  bonds,  or  "  any  deficiency  in  operating 
expenses."  They  are  authorized,  "  after  the  necessary  means  have 
been  procured,  as  herein  provided,"  to  purchase  necessary  lands  and 
materials,  and  construct  reservoirs,  buildings,  machinery,  and  fixtures 
to  supply  water,  and  to  provide  means  for  fire  protection,  and  are 
given,  for  the  purposes  of  the  "  fire  department,"  the  powers  which 
were  before  possessed  by  the  village.  They  are  empowered  to  lay 
pipes  for  water,  and  to  build  hydrants,  and  to  employ  such  persons  as 
they  deem  necessary  to  perform  their  duties.  They  have  power  to 
levy  water-rates  on  consumers  on  an  equitable  basis.  They  can  pro- 
cure lands  by  condemnation,  where  needed,  and,  on  payment  of  the 
damages  into  the  city  treasury,  may  get  the  title.  All  materials  con- 
tracted for  or  procured  by  them  are  exempt  from  execution. 

It  may  be  important,  in  this  connection,  to  consider  the  legal  posi- 
tion of  this  board  in  its  functions.  While  it  is  a  local  corporation , 
created  to  serve  municipal  purposes,  it  is  in  no  sense  a  municipal  cor- 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


o'leary  v.  board  of  fire  and  water  commissioners.       7 

poratiou,  -within  the  legal  meaning  of  that  term.  It  has  been  settled 
inTthis^ate  that  theif  can  be  no  nmnicipal  corporation  that  is  not  the  U 
direct  representative  of  the  people  of  its  locality.  Attorney  General  y^X  \ 
Vounciliiien^  58  Mich.  213  (24  N.  W.  Rep.  887) ;  Allor  v.  Auditors, 
43  id.  76  (4  N.  W.  Rep.  492)  ;  People  v.  HurWut,  24  id.  44;  Board 
V.  Auditora,  68  id,  576  (36  N.  W.  Rep.  743) ;  Commissioners  v.  Detroit^ 
28  id.  228 ;  Attorney  General  v.  Detroit,  29  id.  108  ;  Butler  v.  Detroit, 
43  id.  552  (5  N.  W.  Eep.  1078).  In  several  of  these  as  in  other 
cases  the  doctrine  has  been  recognized  that  the  establishment  of  cor- 
porations to  act  as  municipal  boards  or  agencies  did  not  give  them  any 
governmental  municipal  authority ;  and  it  is  difficult  to  see  how  the 
incorporation  or  non-incorporation  of  the  same  board  can  change  its 
character  in  the  performance  of  public  duties.  The  furnishing  of 
water  and  the  establishment  of  a  fire  department  are  among  the  almost 
universal  functions  of  cities ;  and  the  incorporation  of  water  and  fire 
boards  appointed  by  the  city  is  only  a  convenient  way  of  removing 
that  business  from  the  constant  interference  of  the  ordinary  city 
authorities,  with  such  safeguards  as  are  deemed  best  for  that  purpose. 
It  was  held  in  Detroit  v.  BlacJceby,  21  Mich.  84,  that  cities  and 
municipalities  are  not  usually  responsible  in  damages  for  the  negTect 
of  persons  in  public  office,  unless  made  so  b}^  statute ;  and  it  has  been 
field"  in  numerous  cases  since  that  the  statute  liability  cannot  be  en- 
larged. Detroit  v.  Putnam,  45  Mich.  263  (7  N.  W.  Rep.  815); 
McKellar  v.  Detroit,  hi  id.  158  (23  N.  AY.  Rep.  621) ;  McArthur  v. 
Saginaiv  58  id.  357  (25  N.  W.  Rep.  313) ;  Williams  v.  Grand  Rapids, 
59  id.  51  (26  N.  W.  Rep.  279) ;  Keyes  v.  Village  of  Marcellus,  50  id. 
439  (15  N.  W.  Rep.  542).  On  the  other  hand,  it  was  held  in  Detroit 
V.  Corey,  9  Mich.  165,  that  where  a  city  is  engaged  in  making  a  work 
which  is  its  private  property  as  a  municipality,  and  not  a  mere  public 
easement,  and  done  under  city  employment  or  contract,  it  is  respon- 
sible for  injuries  caused  by  neglect  in  its  process  of  construction,  as  it 
is  for  any  such  action  as  directly  injures  private  property.  Pennoyer 
V.  Saginaic,  8  Mich.  534;  Ashley  v.  Port  Huron,  35  id.  296;  Defer  v. 
Detroit,  67  id.  346  (34  N.  W.  Rep.  680).  But  it  is  not  usually  liable 
in  other  cases.  If  this  defendant  was  the  representative  directly  of 
the  people  of  Marquette  to  govern  the  city,  with  power  to  tax  the 
people  to  carry  out  its  plans,  and  held  the  property  in  its  charge  by 
proprietorship  for  its  own  purposes,  it  would  seem  to  come  within  the 
Corey  case.  But  a  city  represents  the  people  for  all  the  strict  pur- 
poses of  local  government,  and  has  power  to  raise  its  own  revenue. 
The  Legislature,  in  requiring  towns,  cities,  and  villages  to  answer  in 
damages  for  neglect  to  keep  roads  in  repair,  at  the  same  time  found  it 
necessary  to  remove  one  of  the  recognized  difficulties  arising  from  lack 
of  funds,  b}'  enabling  them  to  provide  by  taxation  for  all  such  pur- 
poses. The  purposes  for  whicli  the  present  municipal  agency  was 
created  are  entirely  for  the  protection  of  the  city  from  fire,  and  for 
promoting  its  health  by  a  supply  of  good  water.     The  defendant  is 


(^>oJh  tXj<uu>.  w^J:e=>  ^-a'^wvi-^.'n  '* ^"^^-^.^^•'M^ 


(i^ViiU^3_  di^»lt^^C'^^  ort^^r  '-'"-•fin-  «•    >>-<AJlfi. 


a  ,  _^ — ^^^^^^^ 


8  WEST  CHICAGO   PARK  COMMISSIONERS   V.   CHICAGO. 

only  enabled  to  obtain  and  hold  such  property  as  will  be  instrumental 
to  that  end.     Every  seizure  of  such  property,  if  allowed,  would  be  a 
diminution  of  the  power  of  defendant  to  perform  its  public  duties  in 
regard  to  public  health  and  safety.     It  not  only  has  no  taxing  power, 
but  the  city  has  no  power  to  give  it  any  taxes,  except  such  as  will 
enable  it  to  pay  its  bonds,  and  "  meet  any  deficiency  in  operating  ex- 
penses."    Its  property  is  not  subject  to  execution.     It  cannot  be  true 
that  such  an  agency  can  be  officially  liable  to  suits  for  liabilities,  where 
it  has"no  legal  means  of  raising  funds  for  payment.     As  already  sug^" 
gested,  unincorporated  boards  are  not  so  liable ;  and  there  is  no  oBvious* 
reason  why  the  mere  fact  of  incorporation,  with  no  change  of  powers," 
"can  change  their  liabilities. 

"We  cannot  consider,  on  this  record,  any  other  question  but  the  lia- 
bility of  this  board.  We  know  of  no  other  instance  in  which  a  public 
board  can  be  subjected  to  suit  without  means  of  raising  money  from 
the  tax-payers.  It  is  for  the  Legislature  to  determine  how  far,  if  at  all, 
a  body  whose  negligence,  if  it  is  so  called,  is  imputed,  and  in  no  sense 
actual,  shall  be  made  subject  to  suit  for  the  misconduct  of  its  em- 
ployes. There  are  many  cases  where  such  liability  does  not  exist, 
except  against  the  immediate  individual  wrong-doer.  The  person 
injured  is  not  harmed  any  more  where  there  are  several  persons  liable 
than  where  there  is  only  one.  Imputed  negligence  is  purely  a  question 
of  public  policy,  and  subject  to  legislative  regulation.  No  one  can  be 
bound  by  this  record,  except  the  immediate  parties  to  it,  and  it  would 
be  improper  to  go  beyond  it. 

The  judgment  should  be  reversed,  with  costs,  and  without  a  new 
trial.  ^  '^T-v- 

WEST  CHICAGO  PARK  COMMISSIONERS  v.   CHICAG^^Ck 

1894.     152111.392.  ^4^ -^U^ 

Bailey,  J.^     This  is  an  appeal  by  the  West  Chicago  Park  Conimis-    \„ 
sioners  from  a  judgment  of  the  county  court  of  Cook  county,  confirming       .^ 
a  special  assessment  upon  the  lands  embraced  in  Douglas  Park,  one  of  ^"j^i^ 
the  parks  under  the  control  of  tlie  appellants,  to  pay  the  cost  of  a  street^j^^^a^ 
improvement,  the  improvement  consisting  of  the  erection  of  nineteen  ^w^-< 
boulevard  lamps  on  California  avenue,  between  Twelfth  street  and  Og-  r-y^  ^ 
"den  avenue.     The  amount  of  the  assessment  in  question  is  $128.50,  and  j-.,  ^ 
it  was  stipulated  by  the  parties  in  the  court  below,  that  if  the  assess-    v*^ 
ment  should  be  held  to  be  valid  in  law,  that  should  be  deemed  the  cor- 
rect amount  of  benefits  to  be  assessed  upon  the  park  property  for  the 
improvement,  but  it  was  further  recited  in  the  stipulation  that  the  case 
was  selected  out  of  a  large  number  of  similar  cases  pending,  for  special    . 


1  See  Overseers  of  the  Poor  v.  Sears,  22  Pick.  122. — Ed. 
'  Arguments  and  part  of  opinion  omitted.  —  Ed. 


irrsf-'- 


WEST   CHICAGO   PARK   COMMISSIONERS   V.    CHICAGO.  9 

assessments  made  by  the  city  of  Chicago  upon  the  West  Chicago  parks, 
involving  in  all  considerable  amounts,  for  the  purpose  of  getting  a  de- 
cision on  the  law  questions  involved.  In  this  court  it  is  admitted  that 
the  case  is  brought  here  as  a  test  case,  for  the  purpose  of  settling  the 
question  of  the  power  of  the  city  of  Chicago  to  assess  the  lands  em- 
braced in  the  parks  and  boulevards  under  the  control  of  the  appellants, 
for  the  improvement  of  streets  adjacent  thereto  or  abutting  thereon. 

The  appellants  appeared  before  the  county  court  and  interposed  a 
large  number  of  objections  to  the  confirmation  of  the  assessment,  all 
of  which  were  overruled,  and  all  the  questions  of  law  which  we  shall 
find  it  necessary  to  discuss  were  thereby  properly  raised. 

The  West  Chicago  Park  Commissioners  hold  their  office  and  exist  as 
a  municipal  corporation  under  the  provisions  of  an  act  of  the  General 
Assembly,  entitled  "  An  act  to  amend  the  charter  of  the  city  of  Chi- 
cago, to  create  a  board  of  park  commissioners,  and  authorize  a  tax  in 
the  town  of  West  Chicago,  and  for  other  purposes,"  approved  and  in 
force  February  27,  1869,  and  of  various  other  subsequent  acts  supple- 
mental thereto  or  amendatory  thereof.  The  act,  after  amending  the 
charter  of  the  city  of  Chicago,  by  providing  for  an  enlargement  of  its 
boundaries  by  adding  thereto  a  considerable  amount  of  adjacent  terri- 
tory, including  that  which  was  afterward  embraced  in  the  West  Chi- 
cago parks,  provided,  among  other  things,  that  seven  persons,  resident 
freeholders  and  qualified  voters  of  the  town  of  West  Chicago,  who 
should  be  designated  by  the  Governor,  should  be,  and  they  were 
thereby,  constituted  a  board  of  public  park  commissioners  for  that 
town,  to  be  known  under  the  name  of  the  "West  Chicago  Park  Com- 
missioners," their  term  of  oflice  to  be  seven  years,  and  they  were 
required  to  qualify  by  taking  an  ofl3cial  oath  and  by  giving  an  oflflcial 
bond,  and  to  organize  as  a  board  by  electing  one  of  their  number 
president,  and  by  appointing  a  secretary  and  treasurer,  and  by  adopt- 
ing a  common  seal,  and  it  was  provided  that  "  the  said  board  of  com- 
missioners shall  be  a  body  politic  and  corporate,  with  perpetual 
succession,  and  power  to  sue  and  to  be  sued,  plead  and  be  impleaded, 
to  have  and  use  a  common  seal,  and  they  shall  have  and  enjoy  all  thej 
powers  necessary  for  the  purposes  of  this  act."  ^ 

In  view  of  these  various  statutory  provisions,  it  is  perfectly  plain 
that  the  West  Chicago  Park  Commissioners  are  a  municipal  corpora- 
tion,  created  for  the  purpose  of  Ia3ang  out,  estaolishing,  improving 
and  maintaining  certain  parks,  boulevards  and  ways  within  the  terri- 
torial limits  of  the  city  of  Chicago,  and  that  it  is  given  full  and  exclu- 
sive  power  and  authority,  not  only  to  lay  out  and  improve,  but  also  to 
govern,  regulate,  manage,  control  and  direct  the  same,  and  that  its 
p^wer  and  authorit}'  in  all  these  respects  are  plenary,  and  exclusive  of 
that  of  the  city  of  Chicago. 

^  The  Court  then  quoted  other  statutory  provisions. 


10 


WEST   CniCAGO   I'AUK    COMMISSIONERS    V.   CHICAGO. 


Rome  question  is  made  as  to  its  rank  and  position  as  a  corporation, 

—  that  is,  wlictlicr  it  is  to  be  regarded  as  a  nmuicii)al  corporation  in 

^^^^S^   the  full  and  proper  sense  of  the  term,  or  merely  what  is  called  a  quasi 

^^.ijJ^>*^.|  municipal  corporation.     While  the  settlement  of  this  question  is  pcr- 

li  1ki|)S  not  of  controlling  importance,  it  may  aid  somewhat  in  the  solution 

Pl  of   some  of  the  prop(jsitions  presented   for  our  consideration   in  this 

case,  and  we  will  therefore  take  the  time  to  consider  it  hiielly. 

As  we  liave  already  seen,  by  the  act  of  February  27,  18G9,  under 
which  the  commissioners  were  originally  organized,  they  were  declared 
to  be  a  body  politic  and  corporate,  and  were  afterwards  8[)oken  of  in 
tlie  act  as  a  "corporation,"  and  they  were  endowed  with  the  usual 
attributes  of  a  corporation,  viz.  that  of  peri)etual  succession,  the 
power  to  sue  and  to  ])e  sued,  to  plead  and  be  impleaded,  to  have  a 
common  seal,  and  they  were  vested,  in  general  terms,  witli  all  the 
powers  pecessary  for  the  puri)Oses  of  the  act.  Among  the  powers 
S})eci(ically  given  were  the  power  to  make  and  enforce  ordinances;  to 
ai)poiiit  and  employ  a  police  force  ;  to  levy  taxes  for  muTTtfTpal  pur- 
poses; to  actpiire,  by  purchase,  condemnation  or  otherwise,  the  lands 
necessary  for  the  formation  of  parks,  boulevards  and  ways  ;  to  improve, 
beautify  and  maintain  the  same,  and  hold  the  title  thereto  in  perpetu- 
ity, for  the  benefit  of  the  inhabitants  of  the  town  of  West  Chicago  and 
of  the  i)ublic,  as  public  pi'omenade  and  ])leasurc  grounds  and  ways, 
and  to  pay  the  cost  and  cxpens(\s  th(>reby  incurred  by  special  assess- 
ments up(jn  the  propiirty  deemed  to  be  benefited  thereby  ;  and  it  was 
further  expressly  provided,  that  in  regard  to  its  parks,  boulevards  and 
ways  the  board  should  possess  all  the  power  and  authority  C(;nf erred 
by  law  upon  or  possessed  by  the  connnon  coinicil  of  the  city  of  Chicago 
in  n^spect  to  the  public  s(|uares,  places  and  streets  of  the  city,  but 
without  power  to  sell,  alien,  mortgage  or  incumber  the  same. 

That,  within  the  scope  of  the  purposes  for  which  it  was  created,  the 
^j^orporation   possesses  all  the  powers  of   a  nnmicipal  body  does  not 
jy^r^  seem  to  admit  of  serious  doubt.     And  not  only  is  this  so,  but  it  was 

•  v-*^  •      called  into  biung  and  its  organization  was  ertected,  not  by  mere  act  of 
g^r^*'^'^      the  sovereign  legislative  will,  but  by  the  express  assent  of  the  i)cople 
over  which  its  jurisdiction  extends.     As  we  have  already  seen,  by  the 
terms  of  the  act  of  incorporation  the  question  whether  the  act  should 
take  effect,  and  the  i)ark  board  become  thereby  incorporated,  was  sub- 
mitted to  the  vote  of  the  legal  voters  of  the  territory  to  be  embraced 
within  the  park  district,  and  oidy  upon  an  alliriuative  vote,  expressing 
the  voluntary  consent  of  the  people  of  the  district,  did  the  act  become 
effectual  or  the  incorporation  take  i)lace.     Thc^ Park  act  did  not  create 
the  corporation  of  its  own  force,  but  it  had  the  elTect  only  of  an  en- 
abling act,  under  which  the  inhabitants  of  the  district  could  orgaiiize_ 
themselves  into  a  nnniicii)al  corporation  if  they  should   sec;  fit.     The 
corporation  therefore  exists,  not  as  a  mere  result  ol'  .m  ixcrcise  of  the 
sovereign  higislativo  will,  but  by  virtue  of  the  voluntary  action  of 
the  people  composing  it. 


WEST   CHICAGO   PARK   COMMISSIONERS   V.   CHICAGO. 


11 


Municipal  corporations,  such  as  cities  and  villages  incorporated 
under  special  charters  or  voluntarily  organized  under  general  incor- 
poration laws,  are  called  into  existence  either  at  the  direct  solicitation 
or  by  the  free  consent  of  the  persons  composing  them,  >Ylnle  quasi. 
municipal  corporations,  sometimes  called  involuntary  cori)orationsT 
such  as  counties,  etc  ,  are  only  U>cal  organizations,  which,  for  the  pur 
poses  of  civil  administration,  are  invested  with  a  few  of  the  characterj 
islTcs'of  corporate  existence.  They  are  local  subdivisions  of  the  State, 
created  by  the  sovereign  legislative  i)owcr,  of  its  own  sovereign  will 
and  without  any  particular  solicitation,  consent  or  concurrent  action 
of  the  people  who  inhabit  them.  Hamilton  County  v.  3li(/hds,  7  Ohio 
St.  109;  Finch  v.  Board,  etc.,  80  id.  37;  Askrir  v.  Jfale,  54  Ala.  G39  ; 
Willianisport  v.  Commomvca/fh,  81  Pa.  St.  187  ;  Harris  v.  Board  of 
jSupircisors,  105  111.  445  ;  IloUenheck  v.  Winnehago  Countu,  95  id.  148; 
Town  of  Waltham  v.  Krmpcr,  55  id.  84 C);  1  Dillon  on  Mun.  (  orp.  sec. 
22,  et  seq.;  15  Am.  &  Eng.  Ency.  of  Law,  954,  and  cases  cited  in 
notes. 

Applying  the  foregoing  test,  —  a  test  which  seems  to  be  abundantly 
sustained  by  all  the  authorities,  — it  follows,  logically  and  necessarily, 
that  the  corporation  in  (luestion  falls  within  tiie  class  known  as  muni- 
cipal coriHM'ations,  projierly  so  called,  and  not  that  of  quasi  or  invohni- 
tary  municipal  corporations.     But  our  attention  is  ct^led  to  the  fact 
that  this  court,  in  former  decisions,  in  speaking  of  this  identical  cor- 
poration and  other  similar  cor[)orations,  has  called  them  quasi  nuinici- 
pal  corporations.     This  was  the  case  in  People  v.  Salomon,  51  111.  37, 
Wlkox  V.  People,  90  id.   180,  Wrst  Chicago  Park  Comrs.  v.   Western 
Union  Tel.  Co.  103  id.  33,  and  Kedzie  v.   West  Park  Comrs.  114  id. 
280.     In  other  cases  they  are  spoken  of  as  municipal  corporations, 
without  any  qualifying  word.     People  v.    Walsh,  90  111.  232 ;  South 
Park  Comrs.  v.  Duider;/,  91  id.  49.      On  examining  these  cases,  how- 
ever, it  will  be  found  that  in  none  of  them  was  there  any  attempt  to 
discriminate  between  municipal  and  quasi  municipal  corporations,  nor 
any  occasion  for  so  doing.     In  People  v.  Salomon,  in  which  the  term 
quasi  municipal  corporations  was  first  applied  to  these  bodies,   the 
question  was  as  to  the  validity  of  the  provisions  of  the  Tark  act  vest- 
ing the  park  board  with  power  to  levy  and  collect  taxes  within  the 
park  district,  and  for  the  purposes  of  that  question  all  that  was  neces- 
sary to  determine  was,  that  the  park  board  was  at  least  a  corporate 
authority  quasi  municipal,  and  the  subsequent  cases  in  which  the  same 
tei'm  has  been  applied  to  those  corporations  have  simply  followed  the 
Salomon  case,  and  none  of  them  have  been  of  such  character  as  to  call 
for  an  accurate  discrimination  in  the  use  of  terms. 

It  in  no  way  militates  against  the  view  that  the  park  board  is  a 
municipal  corporation  properly  so  called,  that  the  objects  and  powers 
of  the  corporation  are  limited  to  tlie  matter  of  creating,  improving, 
embellishing  and  maintaining,  in  peritetuity,  a  system  of  parks,  boule- 
vards and  ways.     The  powers  of   every  municipal  corporation   are 


12  WEST  CHICAGO   PAEK   COMMISSIONEKS   V.   CHICAGO. 

necessarily  more  or  less  limited,  and  the  scope  and  extent  of  their  cor- 
porate powers,  and  their  limitations,  are  always  matters  of  legislative 
discretion.  But  the  number  and  scope  of  the  objects  for  which  a  pub- 
lic corporation  is  organized  do  not,  and  have  never  been  held  to,  con- 
stitute the  test  by  which  to  determine  w^hether  the  organization  is  a 
municipal  corporation  properly  so  called,  or  only  a  qtiasi  municipal' 
corporation.  The  park  board,  within  the  purview  of  its  powers,  is  a 
corporation  endowed  with  the  same  corporate  functions,  derived  from 
the  same  source,  and  exercised  in  substantially  the  same  way,  as  the 
city  of  Chicago.  It  is  in  no  sense  a  corporation  organized  to  exercise 
a  portion  of  the  municipal  powers  and  functions  of  the  city,  and  in 
subordination  to  it,  but,  within  its  own  sphere,  it  has  the  same  rank, 
and  the  exercise  of  its  corporate  powers  is  as  exclusive  of  any  power 
on  the  part  of  the  city  to  interfere,  as  if  the  two  corporations  occupied 
wholly  separate  areas  of  territory. 

By  the  terms  of  the  Park  act,  the  park  board  is  given  "  full  and  ex- 
clusive power  "  to  govern,  manage  and  control  all  parks,  boulevards  and 
ways  authorized  by  the  act.  By  the  several  supplemental  acts  under 
which  the  board  acquired  authority  to  take  possession  of  and  control 
certain  existing  parks  in  the  town  of  West  Chicago,  and  the  streets 
adjacent  to  its  parks,  and  other  streets  to  be  selected  for  the  purpose 
lof  forming  connections  between  its  parks  and  other  portions  of  the 
city,  those  parks  and  streets  were  transferred  from  the  jurisdiction  of 
the  city  of  Chicago,  and  were  placed  under  the  exclusive  power  and 
control  of  the  park  board,  the  same  as  the  parks  and  boulevards  orig- 
inally laid  out  and  improved  by  it.  It  follows  that  the  power  of  the 
park  board  over  all  these  parks,  boulevards  and  streets,  for  the  pur- 
poses prescribed  by  these  statutes,  is  plenary,  while  that  of  the  city  is 
wholly  excluded.  And  this  exclusion,  so  far  as  it  relates  to  any  power 
on  the  part  of  the  city  to  govern,  manage,  control  or  interfere  with 
these  parks,  boulevards  and  streets  as  such,  is  as  complete  as  it  would 
have  been  if  the  parks,  boulevards  and  streets  had  been  wholly  with- 
drawn from  the  territorial  limits  of  the  city.  Indeed,  the  legal  effect 
of  the  various  park  acts  would  seem  to  be  to  take  them  out  of  the  ter- 
ritorial jurisdiction  of  the  city,  so  that,  so  far  as  the  power  of  the  city 
in  relation  to  them  is  concerned,  the  corporate  organization  of  the 
city  is  practically  dissolved. 

It  is  a  well  recognized  principle  of  law,  that  there  cannot  be  at  the 
same  time,  within  the  same  territory,,  two  distinct  municipal  corpora-" 
tions,  exercising  the  same  powers,  jurisdiction  and  privileges.  1  Dil- 
lon on  Mun.  Corp.  (-ith  ed.)  sec.  184.  In  Wilcox  on  Municipal 
Corporations,  27,  it  is  said:  "A  corporation  may  be  created  in  any 
place  where  there  is  not  an  existing  corporation  for  municipal  govern- 
ment, even  where  there  has  formerly  been  one,  if  it  be  now  dissolved. 
But  there  cannot,  at  the  same  time,  be  two  corporations  in  the  same 
place,  having  the  same  or  similar  powers,  privileges  and  jurisdiction." 
So  iu  Grant  on  Corporations,  18j  the  rule  is  laid  down  as  follows : 


<r 


BAILEY   V.   MAYOR   OF   NEW   YORK.  13 

"  There  appears  to  be  no  limit  to  the  power  of  the  crown  to  grant  a 
charter  of  municipal  incorporation,  as  regards  the  size  or  the  character 
of  the  town  to  be  incorporated.  This  rule  must,  however,  be  observed 
for  the  sake  of  order  and  peace,  viz.  that  there  cannot  be  two  corpora- 
tions for  the  same  purposes,  with  co-extensive  powers  of  government, 
extendino;  over  the  same  district." 

The  same  doctrine  is  laid  down  in  Taylor  v.  City  of  Fort  Wayne, 
47  Ind.  274,  and  it  is  there  said  that  "  the  proposition  that  two  inde- 
pendent governments  cannot  exercise  the  same  powers  within  the 
same  district  at  the  same  time  is  a  self-evident  one."  To  same  effect 
see  Strosser  v.  City  of  Fort  Wayne,  100  Ind.  443 ;  State  v.  Town  of 
Winter  Park,  25  Fla.  371 ;  City  of  Paterson  v.  Society,  etc.,  24  N.  J.  L. 
38o ;  King  v.  Pasmore,  3  T.  R.  199 ;  15  Am.  &  Eng.  Ency.  of 
Law,   1007. 

We  do  not  intend  to  intimate  that,  in  the  exercise  of  other  municipal 
powers  and  functions,  the  city  is  excluded  from  jurisdiction  over  the 
park  property,  but  only  that,  so  far  as  relates  to  the  laying  out,  im- 
provement, management  and  control  of  the  parks,  the  jurisdiction  of 
the  park  board  is  exclusive.  For  all  the  purposes,  then,  of  laying  out, 
improving  and  maintaining  parks,  boulevards,  streets  and  like  public 
grounds,  the  city  and  the  park  commissioners  occupy  the  legal  position 
of  two  independent  and  co-equal  municipalities,  each  vested  with  ex- 
clusive jurisdiction  over  the  public  grounds  committed  to  its  care,  as 
trustee  for  the  public.  Neither  can  encroach  upon  the  territorial  juris- 
diction of  the  other,  but  they  stand,  so  far  as  these  public  grounds  are 
concerned,  in  substantially  the  same  legal  relation  to  each  other  as 
though  their  territorial  limits  embraced  adjoining  but  wholly  separate 
areas.  So  far,  then,  as  relates  to  all  questions  of  street  improvements, 
the  WesrCliTcago  parks  and  boulevards  are  no  more  to  be  considered" 
as  a  part  of  the  city  of  Chicago  than  they  would  be  if  they  were  situate 
within  the  adjoining  city  of  Evanston. 

[The  Court  then  held  that  the  parks  were  for  the  benefit  of  all  per- 
sons in  the  entire  city ;  that  the  Commissioners  had  no  power  to  raise 
money  to  p?y  assessments  and  taxes;  and  that  the  assessment  in 
question  was  without  legal  authority,] 

;..  Jxidoment  revexsed. 

05.  v^--      : —    ^^'^^- 

f^^y<yjy^  Section  II.  —  Functions  of  Municipal  Corporations. 

BAILEY  V.  MAYOR   OF   NEW   YORK. 
1842.     3  Hill,  531. 

,C  Action  on  the  case  against  the  City  of  New  York  for  the  destruc- 
tion of  property  ofTEe  plaintiff  by  the  construction  of  water-works  for 
the  city.^ 

1  This  statement  of  facts  is  substituted  for  that  of  the  Reporter.  An  extract  from 
the  opinion  only  is  given.  —  Ed. 


14  BAILEY  V.   MAYOR   OF   NEW  YORK. 

Nelson,  C.  J.  The  principal  ground  taken  at  the  circuit  against 
this  action,  and  the  one  upon  which  it  is  understood  the  cause  there 
turned  was,  that  the  defendants  were  not  chargeable  for  negligence  or 
unskilfulness  in  the  construction  of  the  dam  in  question ;  inasmuch  as 
the  water  commissioners  were  not  appointed  by  them,  nor  subject  to 
their  direction  or  control.  In  other  words,  the  commissioners  not  being 
their  agents  in  the  construction  of  the  dam,  the  rule  respondeat  superior 
could  not  properly  be  applied. 

Another  ground  is  now  taken,  which  I  will  first  notice,  viz.  that 
admitting  the  water  commissioners  to  be  the  appointed  agents  of  the 
defendants,  still  the  latter  are  not  liable,  inasmuch  as  they  were  acting 
solely  for  the  state  in  prosecuting  the  work  in  question,  and  therefore 
are  not  responsible  for  the  conduct  of  those  necessarily  employed  by 
them  for  that  purpose.  We  admit,  if  the  defendants  are  to  be  regarded 
as  occupying  this  relation,  and  are  not  chargeable  with  any  want  of 
diligence  in  the  selection  of  agents,  the  conclusion  contended  for  would 
seem  to  follow.  They  would  then  be  entitled  to  all  the  immunities  of 
public  officers  charged  with  a  duty  wdiich,  from  its  nature,  could  not  be 
executed  without  availing  themselves  of  the  services  of  others ;  and 
the  doctrine  of  respondeat  superior  does  not  apply  to  such  cases.  If  a 
public  officer  authorize  tlie  doing  of  an  act  not  within  the  scope  of  his 
authority,  or  if  he  be  guilty  of  negligence  in  the  discharge  of  duties  to 
be  performed  by  himself,  he  will  be  held  responsible ;  but  not  for  the 
misconduct  or  malfeasance  of  such  persons  as  he  is  obliged  to  employ. 
Hall  V.  Smith,  2  Bing.  156;  J.  B.  Moore,  226,  S.  C. ;  Humphreys  \\ 
Mears,  1  Man.  &  Ryl.  187;  Bolton  v.  Crowther,  4  Dowl.  &  Ryl.  195; 
Harris  v.  Balder,  4  Maule  &  Selw.  27. 

But  this  view  cannot  be  maintained  upon  the  facts  before  us.  The 
powers  conferred  by  the  several  acts  of  the  legislature  authorizing  the 
execution  of  this  great  work  are  not,  strictly  and  legally  speaking, 
conferred  for  the  benefit  of  the  public.  The  grant  is  a  special,  private 
franchise,  made  as  well  for  the  private  emolument  and  advantage  of 
the  city,  as  for  the  public  good.  The  state,  in  its  sovereign  character, 
has  no  interest  in  it.  It  owns  no  part  of  the  work.  The  whole  invest- 
ment under  the  law  and  the  revenue  and  profits  to  be  derived  there- 
from, are  a  part  of  the  private  property  of  the  city  ;  as  much  so  as  the 
lands  and  houses  belonging  to  it,  situate  within  its  corporate  limits. 

The  argument  of  the  defendants'  counsel  confounds  the  powers  in 
question  with  those  belonging  to  the  defendants  in  their  character  as  a 
municipal  or  public  body  —  such  as  are  granted  exclusively  for  public 
purposes  to  counties,  cities,  towns  and  villages,  where  the  corporations 
have,  if  I  may  so  speak,  no  private  estate  or  interest  in  the  grant.  As 
the  powers  in  question  have  been  conferred  upon  one  of  these  public 
corporations,  thus  blending  in  a  measure  those  conferred  for  private 
advantage  and  emolument  with  those  already  possessed  for  public  pur- 
poses, there  is  some  difficulty.  I  admit,  in  separating  them  in  the  mind, 
and  properly  distinguishing  the  one  class  from  the  other,  so  as  to  dis- 


STATE   EX   REL.    GEAKE   V.   FOX.  15 

tribute  the  responsibility  attaching  to  the  exercise  of  each.  But  the 
distinctiou  is  quite  clear  and  well  settled,  and  the  process  of  separation 
practicable.  To  this  end,  regard  should  be  had,  net  so  much  to  the 
nature  and  character  of  the  various  powers  conferred,  as  to  the  object 
and  purpose  of  the  legislature  in  conferring  them.  If  granted  for 
public  purposes  exclusively,  they  belong  to  the  corporate  body  in  its 
public,  political  or  municipal  charactePv  But  if  the  grant  was  for  pur- 
poses of  private  advantage  and  emolument,  though  the  public  may  de- 
rive a  common  benefit  therefrom,  the  corporation,  quoad  hoc,  is  to  be 
regarded  as  a  private  company.  It  stands  on  the  same  footing  as 
would  any  individual  or  body  of  persons  upon  whom  the  like  special 
franchises  had  been  conferred.  Dartmouth  College  v.  Woodioard, 
.  4  Wheat.  668,  672  ;  Philips  v.  Bury,  1  Ld.  Raym.  8  ;  2  T.  R.  352,  S.C.; 
Allen  v.  McKeen,  1  Sumner,  297  ;  The  People  v.  Morris,  13  Wend.  331, 
338;  2  KenVs  Com.  275,  4th  ed. ;  U.  S.  Bank  v.  Planters'  Bank,  9 
"Wheat.  907  ;  Clark  v.  Corp.  of  Washington,  12  id.  40;  Moodalay  v.  The 
East  India  Co.,  1  Brown's  Ch.  R.  469.  Suppose  the  legislature,  instead 
of  the  franchise  in  question,  had  conferred  upon  the  defendants  bank- 
ing powers  or  a  charter  for  a  rail-road  leading  into  the  city,  in  the  usual 
manner  in  which  such  powers  are  conferred  upon  private  companies ; 
could  it  be  doubted  that  they  would  hold  them  in  the  same  character, 
and  be  subject  to  the  same  duties  and  liabilities?  I  cannot  doubt  but 
they  would.  These  powers  in  the  eye  of  the  law,  would  be  entirely  dis- 
tinct and  separate  from  those  appertaining  to  the  defendants  as  a  mu- 
nicipal body.  So  far  as  related  to  the  charter  thus  conferred,  they 
would  be  regarded  as  a  private  company  and  be  subject  to  the  respon- 
sibilities attaching  to  that  class  of  institutions. 

•  f 

V^  STATE  EX   REL.   GEAKE   v.    FOX. 

^     .  1902.     158  Ind.  126. 


Xy" 


Hadlet,  J.^  Claiming  to  act  by  authority  of  a  statute  approved 
March  7,  1901  (Acts  1901,  p.  132),  the  Governor  appointed  the  relat- 
ors commissioners  of  the  board  of  public  safety  for  the  city  of  Fort 
Wayne,  to  take  charge  of  the  police  and  fire  departments.  The  act 
required  the  commissioners  to  execute  bonds  for  the  faithful  perform- 
ance of  their  official  duties,  to  be  approved  by  and  filed  with  the  comp- 
troller. Relators  tendered  proper  bonds,  and  appellee,  as  comptroller, 
refused  to  approve  and  file  them  solely  on  the  ground  that  the  act  was 
unconstitutional.  Thereupon  the  relators  filed  their  application  for  a 
writ  of  mandamus  to  compel  appellee  to  approve  and  file  their  bonds. 
Demurrers  were  sustained  to  the  application  and  alternative  writ. 
The  only  question  involved  is  the  constitutionality  of  that  part  of  the 
act  which  relates  to  the  appointment  of  the  board  of  public  safety. 

•  •••••••• 

1  Part  of  the  opinion  only  is  given.  —  Ed, 


16  STATE   EX  REL.   GEAKE   V.   FOX. 

It  should  be  remembered  that  municipal  corporations  are  instituted 
by  legislative  authority  for  a  two  fold  purpose :  (1)  As  state  govern- 
mental agencies,  to  assist  the  State  in  their  localities  in  the  adminis- 
tration and  execution  of  such  laws  as  pertain  to  the  people  of  the  State 
at  large ;  (2)  for  the  promotion  of  certain  exclusively  local  interests 
which  are  peculiar  to  concentrated  population,  and  in  which  the  State, 
except  in  conferring  the  power  and  regulating  its  exercise,  has  no  more 
right  of  interference  than  it  has  with  the  private  affairs  of  its  several 
inhabitants. 

With  respect  to  the  JBrst,  there  are  important  powers  delegated  to 
municipalities  which  concern  every  citizen  of  the  State,  and  for  the 
proper  exercise  of  which  the  State  cannot  abdicate  responsibility  by 
committing  them  to  local  officers.  It  is  very  clear,  from  the  tenor  of 
the  whole  instrument,  that  the  Constitution  makers  never  intended  that 
the  territorial  divisions  recognized,  —  that  is,  counties,  townships,  and 
towns,  should  govern  themselves,  independently  of  State  supervision 
or  of  State  supremacy,  but  in  every  matter  which  affects  the  safety,' 
morals,  health,  or  general  welfare  of  the  people  at  large,  or  of  a  con-' 
siderable  number  of  them,  there  is  undoubtedly  reserved  in  the  State 
the  power  to  supervise,  control,  and  even  coerce,  local  officers  in  the 
discharge  of  public  duties,  and  even  to  send  its  own  agents  into  any 
organized  district,  if  necessary,  to  enforce  a  public  right,  or  accomplish 
a  public  benefit.  For  instance,  every  citizen  has  the  right  to  travel 
the  public  highways,  —  those  in  cities  and  towns,  where,  according  to 
common  usage,  they  are  made,  dug  up,  and  improved  by  local  action, 
as  well  as  those  in  rural  districts.  In  every  part  of  these  highways 
the  traveler  is  entitled  to  the  State's  protection  from  violence,  and 
from  dangerous  situations.  For  the  preservation  of  the  public  health, 
for  the  prevention  of  disease  and  epidemics,  each  inhabitant  has  an 
interest  in  the  proper  drainage  of  lauds,  and  in  the  suppression  of  all 
unsanitary  conditions,  whether  rural  or  urban,  and  without  regard  for 
territorial  boundaries,  and  the  right  to  look  to  the  State  for  protection 
against  these  evils  so  far  as  the  same  may  be  legally  afforded.  Like- 
wise the  enforcement  of  the  State's  criminal  and  revenue  laws  are  of 
equal  importance  to  all.  In  all  these,  and  kindred  things,  the  setting 
up  of  corporation  lines  forms  no  barrier  to  the  strong  arm  of  the  State 
in  safeguarding  ever}'  public  interest. 

"With  respect  to  the  second,  each  municipality  organized  under  State 
authority  is  a  distinct  entity  and  factor  in  the  State  government,  as  an 
individual  is  an  entity  and  factor.  And  while  the  Constitution  and 
laws  impliedly  give  the  individual  the  right  to  acquire  property  for  his 
own  benefit,  and  guarantees  to  him  its  enjoyment,  the  same  power  that 
gives  the  municipality  the  right  to  exist  gives  also,  in  express  terms, 
the  right  to  contract  and  acquire  such  property  as  it  may  deem  benefi- 
cial or  conducive  to  the  greater  comfort  and  happiness  of  its  citizens, 
such  as  parks,  halls,  hospitals,  arts,  charities,  and  appliances  for  pro- 
tection against  fire.     These  are  strictly  private  possessions,  lawfully 


STATE   EX   REL.   GEAKE   V.   FOX.  17 

held.  They  are  bought  and  paid  for  by  the  people  of  the  city.  They 
neither  add  to,  nor  diminish  the  burdens  of  the  State,  or  any  part  of  it, 
outside  the  corporation.  The  city's  absokite,  separate,  and  distinct 
tenure' of  such  propex'ty  is  not  different  from  the  holding  of  like  prop- 
erty by  an  individual.  Can  the  property  of  one  be  sequestered  by  the 
State  and  not  of  the  other? 

As  applied  to  this  particular  case  the  citizens  of  Fort  Wayne  had 
provided  themselves  with  such  means  for  protection  against  fire  as  they 
approved,  and  thought  they  could  afford.  Does  it  malve  any  difference 
to  the  citizens  of  Marion  county,  or  to  the  citizens  of  Allen  county, 
outside  the  city  limits,  what  these  means  are?  The  law  does  not  re- 
quire the  city  to  provide  any  protection  against  fire.  The  matter  is 
wholly  voluntary.  And  in  exercising  its  judgment  in  the  matter,  if 
the  city  has  chosen  hand  or  chemical  engines  propelled  by  volunteers, 
or  if  it  has  provided  the  most  powerful  steamers,  and  strongest  and 
fleetest  horses,  and  paid  for  them  by  contributions  from  its  own  citizens, 
by  what  right  may  the  State  arbitrarily  assume  the  possession  and 
control,  to  the  exclusion  of  the  city?  In  whose  behalf  does  the  State 
act  in  such  a  proceeding?  There  is  a  vast  difference  in  the  right  to 
make  laws  and  create  offices  for  the  uniform  management  of  municipal 
property,  and  the  right  to  fill  the  offices  and  exercise  the  management. 
The  one  is  legislative  ;  the  other  executive. 


18  BEELIN   V.    GORHAM. 


V>vi\  CHAPTER  II. 


EXTERNAL  CONSTITUTION. 


Section  I.     Creation,  Alteration  and  Dissolution.  ^^*^  ■  **n^-:p, 
BERLIN  V.   GORHAM.  \^  ^  tftyTl**^ 

1856.     34  New  Hampshire,  266}  '"  ^^*^i^    'i^ 

A^ssnivTPSTT.   to  recover   for   supplies   furuished   for   the  support  of      '^' 
Jeremiah  Harding,  and  his  wife  Nancy  Harding,  alleged  to  be  paupers 
having  their  settlement  in  Gorham. 

The  plaintiffs  gave  evidence  that  when  Gorham  was  incorporated, 
on  the  18th  of  June,  1836,  Jeremiah  Harding  resided  and  had  his 
home  in  the  place  which  was  incorporated  into  that  town.  The  court 
ruled  that  if  he  so  resided,  he  would  thereby  gain  a  settlement  in 
Gorham,  although  no  legal  town  meeting  was  holden,  and  though  no 
town  officers  were  chosen,  before  his  removal. 

The  defendant  excepted  to  the  foregoing  ruling,  and  moved  that  the 
verdict  returned  for  the  plaintiffs  be  set  aside. 

JSelloios  <jb  Fletcher^  for  defendant. 

G.  C.  Williams,  for  plaintiff. 

Bell,  J.  By  the  statute  of  1828,  (Laws,  Ed.  1830,  p.  301,)  relat- 
ing to  the  settlement  of  paupers,  which  is  reenacted  without  material 
change  in  the  Revised  Statutes,  ch.  65,  sec.  1,  cl.  6,  (Comp.  Stat.  157,) 
"all  persons,  dwelling  and  having  their  homes  in  any  unincorporated 
place  at  the  time  when  the  same  shall  be  incorporated  into  a  town, 

^  Only  so  much  of  the  case  is  given  as  relates  to  a  single  point.  The  argumenta 
ire  omitted.  —  Ed.  ^  ^ 


CHANDLER   V.   BOSTON.  19 

shall  thereby  gain  a  settlement  therein."  It  was  objected  that  to  make 
an  iucoqjoration  of  a  town  effectual,  there  must  be  a  legal  town  meet- 
ing holden  in  it ;  and  as  the  jjauper,  though  he  resided  in  the  town  at 
the  passage  of  the  act,  removed  before  any  meeting  was  holden,  he  did  „^ 

not  gain  a  settlement.  This  objection  rests  upon  the  idea  that  the  rn\e^^/jx^  *^^^ 
which  ai)plies  in  the  case  of  private  corporations,  that  the  act  is  in-!  Ax>ArO-^*^ *^ 
effectual  until  it  is  accepted  by  the  corporators,  governs  also  the  case'  \'  Ali^T^ 
of  public  corporations,  like  towns.     See  A.  &  A.  on  Corp.  68. 

But  there  is  no  such  rule  in  the  case  of  public  corporations  of  a 
municipal  character.  The  acts  of  incorporation  are  imperative  upon 
all  who  come  within  their  scope.  Nothing  depends  upon  consent, 
unless  the  act  is  expressly  made  conditional.  No  man  who  lives  upon 
the  incorporated  district  can  withdraw  from  the  corporation,  unless  by_ 
a  Teiiioval  from  the  town  ;  and  by  the  mere  passage  of  the  law  the 
town  is  completeh'  constituted,  entitled  to  the  rights  and  subjected  to 
the  duties  and  burdens  of  a  town,  whether  the  inhabitants  are  pleased 
or  displeased.  The  Legislature  has  entire  control  over  municipal  cor- 
porations, to  create,  change,  or  destroy  them  at  pleasure,  and  they  are 
absolutely  created  by  the  act  of  incorporation,  without  the  acceptance 
of  the  people,  or  any  act  on  their  part,  unless  otherwise  provided  by 
the  act  itself.  The  People  v.  Wren,  4  Scam.  269  ;  Warren  v.  Mayor^ 
ttc.  of  Charlestown^  2  Gray,  104  ;  3Iills  v.  Williams^  11  Iredell,  558  ; 
The  State  v.  Curran,  7  Eng.  321  ;  Fire  Department  v.  Kip^  10 
Wendell,  267  ;    The  People  v.  Morris,  13  Wendell,  337. 

Judgment  on  the  verdict . 


^-, 


t 


<5r» 


l/^^^jy^"^'  XjJ^"^    chandler  v.  boston. 

V  A>>''r4-)5j/^  1873.     U2  Massachusetts,  200y 

^         Colt,  J.     The  plaintiffs,  residents  and  tax  paj-ers  in  the  town  of 

^     Brookiine,  and  claiming  the  privileges  and  immunities  which  the}-  are 

1         entitled  to  under  a  town  government,  allege  by  bill  in  equit}'  that  the 

i^    act  providing  for  the  annexation  of  that  town  to  the  cit}'  of  Boston,  on 

^      certain  conditions,  is  a  violation  of  the  provisions  of  the  second  article 

.,,,-t'''   of  the  amendments  of  the  Constitution  of  this  Commonwealth,  b}'  which 

power  is  given  to  the  General  Court  on  certain  conditions  to  charter 

Y'       cities.     An  injunction  is  asked  to  prevent  proceedings  by  the  city  or 

town  under  the  act,  with  a  prayer  that  it  may  be  declared  void,  and  for 

general  relief.     To  this  there  is  a  general  demurrer  for  want  of  equity. 

The  question  whether  this  court  has  jurisdiction  to  grant  the  lelief 
asked  in  favor  of  private  citizens   against  the  contemplated  alleged 
illegal  action  of  these  municipalities,  was  not  argued  and  is  not  con* 
k*^     Bidered  by  us. 

1  Statement  and  arguments  omitted.  —  Ed. 


^ 


r 


s 


^ 


20 


LARAMIE  COUNTY  V.   ALBANY  COUNTY. 


B\-  tlie  ainendraent  of  the  Constitution  relied  on,  power  is  given  to 
tlie  General  Court  to  erect  city  governments  in  an}'  "  corporate  town 
or  towns  of  tliis  Commonwealtli,"  and  to  confer  sucii  powers  as  may  be 
accessary  for  the  government  tliereof,  witLi  tlie  proviso  that  "  no  sucli 
government  shall  be  erected  in  any  town  not  containing  twelve  thousand 
inhabitants,  nor  unless  it  be  with  the  consent  and  on  the  application  of 
a  majority  of  the  inhabitants  of  such  town  present  and  voting  thereon." 

The  bill  alleges  that  the  town  of  Brookline  did  not  contain  twelve 
thousand  inJiabitants,  and  that  the  act  in  question  was  passed  by  the 
Legislature  without  first  obtaining  the  consent  and  without  the  appli- 
cation of  a  majorit}'  of  the  inhabitants  of  the  town. 

The  court  are  of  opinion  that  the  demurrer  is  well  taken.  _The 
control  of.  the, General  Court  over  the  territorial  division  of  the  State 
into  cities,  towns,  and  districts,  unless  controlled  by  some  specific  con^ 
stitutional  limitation,  must  necessarily  be  supreme.  It  is  incident  to 
that  sovereign  power  which  regulates  the  performance  of  public  and 
political  duties.  The  rights  and  franchises  of  such  corporations  are 
granted  only  to  this  end,  and  they  mav  be  modified  and  changed  in 
their  territorial  limits  as  public  convenience  and  necessity'  require. 
The  inhabitants  do  not  derive  private  or  personal  rights  under  the 
act  of  incorporation  ;  the\'  acquire  no  vested  right  in  those  forms  of 
municipal  government  which  exist  under  general  laws  in  towns,  as  dis- 
tinguished from  those  b}'  which  the  affairs  of  cities  are  regulated.  If 
injiiriousl}'  affected  by  legislative  action  upon  these  political  relations, 
within  constitional  limits,  the  courts  can  afford  no  remedy. 

This  power  of  the  General  Court  it  was  not  the  intention  of  the 
amenclment  in  question  to  limit  or  affect.  It  has  no  application  to  the 
annexation,  by  the  authorit}-  of  the  Legislature,  of  a  town  or  part  of  a 
"itown  to  a  city  alread\'  existing.  It  has  express  reference  to  the  erec- 
tion of  a  cit\'  government  in  the  place  of  a  town  government  within  the 
same  town  limits.  "We  are  referred  bj"  the  defendants  to  man}'  acts  of 
the  Legislature  annexing  towns  and  parts  of  towns  to  cities,  showing 
that  this  has  been  the  uniform  construction  of  the  article  in  question. 

Demurrer  sustained. 


LARAMIE  COUNTY  v.  ALBANY  COUNTY.      ~S^Vv  ^-^a 

1875.     92  U.  S.  307.  ^^  (^ 

Appeal  from  the  Supreme  Court  of  the  Territory  of  Wj'oming.  -^l 

Jlfr.  W.  JR.  Steele^  for  the  appellants.  ^^ 

Mr.  A.  II.  Jackson.,  contra.  ^ 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court. 
Couaties,  cities,  and  towns  are  municipal  corporations,  created  by 
the  authority  of  the  legislature  ;  and  they  derive  all  their'^DOwers  from 
the  source  of  their  creation,  except  where  the  constitution  of  the  State ^^^ 


LARAMIE  COUNTY  V.   ALBANY  COUNTY.  21 

otherwise  provides.  Beyond  doubt,  the}'  are,  in  general,  made  bodies 
politic  and  corporate;  and  are  usually  invested  witli  certain  subordi- 
nate legislative  powers,  to  facilitate  tlie  due  administration  of  their 
own  internal  affairs,  and  to  promote  the  general  welfai-e  of  the  munici- 
pality. The}'  have  no  inherent  jurisdiction  to  make  laws,  or  to  adopt 
governmental  regulations  ;  nor  can  they  exercise  any  other  powers  in 
that  regard  than  such  as  are  expressly  or  impliedly  derived  from  their 
charters,  or  other  statutes  of  the  State. 

Trusts  of  great  moment,  it  must  be  admitted,  are  confided  to  such 
municipalities  ;  and,  in  turn,  they  are  required  to  perform  many  impor- 
tant duties,  as  evidenced  by  the  terms  of  their  respective  charters. 
Authority  to  effect  such  objects  is  conferred  by  the  legislature  ;  but  it 
is  settled  law,  that  the  legislature,  in  granting  it,  does  not  divest  itself 
of  any  power  over'  the  inhabitants  of  the  district  which  it  possessed 
before  the  cliarter  was  granted.  Unless  the  Constitution  otherwise 
provides,  the  legislature  still  has  authority  to  amend  the  charter  of 
such  a  corporation,  enlarge  or  diminish  its  powers,  extend  or  limit  its 
boundaries,  divide  the  same  into  two  or  more,  consolidate  two  or  more 
into  one,  overrule  its  action  whenever  it  is  deemed  unwise,  impolitic, 
or  unjust,  and  even  abolish  the  municipality  altogether,  in  the  legisla- 
tive discretion.     Cooley  on  Const.,  2d  ed.,  192. 

Sufficient  appears  to  show  that  the  complainant  county  was'  first 
organized  under  the  act  of  the  3d  of  January,  1868,  passed  by  the 
legislature  of  the  Territory  of  Dacotah,  which  repealed  the  prior  act  to 
create  and  establish  that  county.  When  organized,  the  county  was 
still  a  part  of  the  Territory,  and  embraced  within  its  territorial  limits 
all  the  territory  now  comprising  the  counties  of  Laramie,  Albany,  and 
Carbon,  in  the  Territory  of  Wyoming,  —  an  area  of  three  and  one-half 
degrees  from  east  to  west,  and  four  degrees  from  north  to  south.  Very 
heavy  expenses,  it  seems,  were  incurred  by  the  county  during  that  year 
and  prior  thereto,  greatly  in  excess  of  their  current  means,  as  more 
fully  explained  in  the  bill  of  complaint,  which  increased  the  indebted- 
ness to  the  sum  of  628,000.  Other  liabilities,  it  is  alleged,  were  also 
incurred  by  the  authorities  of  the  county  during  that  period,  which 
augmented  their  indebtedness  to  the  sum  of  $40,000  in  the  aggregate. 

Pending  these  embarrassments,  the  charge  is,  that  the  legislature  of 
the  Territory  passed  two  acts  on  the  same  day,  —  to  wit,  Dec.  16, 
1868,  —  creating  the  counties  of  Albany  and  Carbon  out  of  the 
western  portion  of  the  territory  of  the  complainant  county,  reducing 
the  area  of  that  county  more  than  two-thirds  ;  that,  by  the  said  acts 
creating  said  new  counties,  fully  two-thirds  of  the  wealth  and  taxable 
property  previously  existing  in  the  old  county  were  withdrawn  from  its 
jurisdiction,  and  its  limits  were  reduced  to  less  than  one-third  of  its 
former  size,  without  any  provision  being  made  in  either  of  said  acts 
that  the  new  counties,  or  either  of  them,  should  assume  any  proportion 
of  the  debt  and  liabilities  which  had  been  incurred  for  the  welfare  of 
the  whole  before  these  acts  were  passed. 


22  LARAMIE   COUNTY   V.    ALBANY   COUNTY. 

.  r  ...iJL, 
k  f^rk\      P^J™6nt  of  the  outstanding  debt  having  been  made  hy  the  complain- 
^"^J^^^ant  count}-,  the  present  suit  was  instituted  in  her  behalf  to  compel  the 
■*^^'J^r^  inew  counties  to  contribute  their  just  proportion  towards  such  indebted- 
■^''^^'"^S-^^^ijess.    Attempt  is  made  to  show  that  an  equitable  cause  of  action  exists 
Jt/vJ-^"**^    in  the  case  by  referring  to  the  several  improvements  made  in  that  part 
of  the  Territory  included  in  the  new  counties  before  the}-  were  incorpo- 
rated, and  by  referring  to  the  great  value  of  the  property  withdrawn 
from  taxation  in  the  old  count}',  and  included  within  the  limits  of  the 
newh'-created  counties. 

Process  was  served,  and  the  respondents  appeared  and  filed  separate 

demurrers  to  the  bill  of  complaint.     Hearing  was  had  in  the  District 

J^/^XAC^    .  Court  of  the  Territor}',  where  the  suit  was  commenced  ;    and  the  court 

^f^A/^^^  entered  a  decree  sustaining  the  demurrers,  and  dismissing  the  bill  of 

jft  cJ^  complaint.     Immediate  appeal  was   taken  by  the  complainant  to  the 

Supreme   Court   of    the   Territory,    where,    the   parties   having   been 

>j,  ^.-  again    heard,    the   Supreme    Court    entered   a    decree    affirming    the 

.  \,^>-0i        decree  of   the  District  Court,  and    the  present  appeal  is    prosecuted 

CIj  b}'  the  complainant. 

Two  errors  are  assigned,  as  follows:  (1.)  That  the  Supreme  Court 
erred  in  affirming  the  decree  of  the  District  Court  sustaining  the  de- 
murrers of  the  respondents  to  the  bill  of  complaint.  (2.)  That  the 
Supreme  Court  erred  in  rendering  judgment  for  the  respondents. 

Corporations  of  the  kind  are  properly  denominated  nnblic  corpora- 
tions, for  the  reason  that  the}-  are  but  parts  of  the  machinery  employed 
in  carrying  on  the  affairs  of  the  State  ;  and  it  is  well-settled  law, 
tlfat  the  charters  under  which  such  corporations  are  created  ma}'  be 
changed,  modified,  or  repealed,  as  the  exigencies  of  the  public  service 
or  the  public  welfare  may  demand.  2  Kent,  Com.,  12th  ed.,  305; 
Angell  &  Ames  on  Corp.,  10th  ed.,  sect.  31  ;  Mc.Kim  v.  Odom^  3 
Bland,  407  ;  St.  Louis  v.  Allen^  13  Mo.  400;  The  Schools  v.  Tatman^ 
13  111.  27  ;   'Yarmouth  v.  SJcillmgs,  45  Me.  141. 

Such  corporations  are  composed  of  all  the  inhabitants  of  the  Terri- 
^      L  tory  included  in  the  political  organization  ;  and  the  attribute  of  indi- 

.^^•'^  \  I  viduality  is  conferred  on  the  entire  mass  of  such  residents,  and  it  may 
jrv*v>5^  i  *  ^'^  modified  or  taken  away  at  the  mere  will  of  the  legislature,  according 
•  C/^*tf-\i  *^  ^^^  *^^'^  views  of  public  convenience,  and  without  any  necessity  for 
-jJL  V  .  '  the  consent  of  those  composing  the  body  politic.  1  Greenl.  Ev.,  12th 
^^^^      ed.,  sect.  331. 

Corporate  rights  and  privileges  are  usually  possessed  by  such  corpo- 
rations ;  and  it  is  equally  true  that  they  are  subject  to  legal  obligations 
and  duties,  and  that  they  are  under  the  entire  control  of  the  legislature, 
from  which  all  their  powers  are  derived.     Sixty -five  years  before  the 
^  decree  under  review  was  rendered,  a  case  was  presented  to  the  Supreme 

Court  of  Massachusetts,  sitting  in  Maine,  which  involved  the  same 
principle  as  that  which  arises  in  the  case  before  the  court.  Learned 
counsel  were  employed  on  both  sides,  and  Pa'^sons  was  Chief  Justice  of 
the  Court,  and  delivered  the  opinion.     First  he  adverted  to  the  rights 


LARAMIE  COUNTY  V.   ALBANY  COUNTY. 


23 


and  privileges,  obligations  and  duties,  of  a  town,  and  then  proceeded 
to  say,  "If  a  part  of  its  territory  and  inhabitants  are  separated  fron: 
it  by  annexation  to  another,  or  by  the  erection  of  a  new  corporation, 
the  former  corporation  still  retains  all  its  propertj',  powers,  riglits,  and 
privileges,  and  remains  subject  to  all  its  obligations  and  duties,  unless 
sora".  new  provision  should  be  made  b}-  the  act  authorizing  the  separa- 
tion."     Windhancv.  Portland,  4  Mass.  389. 

Decisions  to  the  same  effect  have  been  made  since  that  time  in 
nearly  all  the  States  of  the  Union  where  such  municipal  subdivisions 
are  known,  until  the  reported  cases  have  become  quite  too  numerous 
for  citation.  Nor  are  such  citations  necessary,  as  they  are  all  one  way, 
showing  that  the  principle  in  this  country  is  one  of  universal  applica- 
tion. Concede  its  correctness,  and  it  follows  that  the  old  town,  unless 
the  legislature  otherwise  provides,  continues  to  be  seized  of  all  its 
lands  held  in  a  proprietary  right,  continues  to  be  the  sole  owner  of 
all  its  personal  property,  is  entitled  to  all  its  rights  of  action,  is 
bound  b}'  all  its  contracts,  and  is  subject  to  all  the  duties  and  obli- 
gations it  owed  before  the  act  was  passed  effecting  the  separation. 

Suppose  that  is  so  as  applied  to  towns  :  still  it  is  suggested  that  the 
same  rule  ought  not  to  be  applied  to  counties ;  but  it  is  so  obvious  that 
the  suggestion  is  without  merit,  that  it  seems  unnecessar}'  to  give  it 
any  extended  examination.  County  of  Richland  v.  County  of  Lavo- 
rence,  12  III.  8. 

Public  duties  are  required  of  cx)unlies  as  well  as  of  towns,  as  a  part 
of  the  machinery  of  the  State  ;  and,  in  order  that  they  may  be  able  to 
perform  those  duties,  the}-  are  vested  with  certain  corporate  powers ; 
but  tlieir  functions  are  wholly  of  a  public  nature,  and  they  are  at  all 
times  as  much  subject  to  the  will  of  the  legislature  as  incorporated 
towns,  as  appears  by  the  best  text-writers  upon  the  subject  and  the 
great  weight  of  judicial  authority. 

Institutions  of  the  kind,  whether  called  counties  or  towns,  are  the 
auxiliaries  of  the  State  in  the  important  business  of  municipal  rule, 
and  cannot  have  the  least  pretension  to  sustain  their  privileges  or 
their  existence  upon  an}'  thing  like  a  contract  between  them  and  the 
legislature  of  the  State,  because  there  is  not  and  cannot  be  any  reci- 
procity of  stipulation,  and  their  objects  and  duties  are  utterlj'  incom- 
patible with  every  thing  of  the  nature  of  compact.  Instead  of  that,  the 
constant  practice  is  to  divide  large  counties  and  towns,  and  to  consoli- 
date small  ones,  to  meet  the  wishes  of  the  residents,  or  to  promote  the 
public  interests,  as  understood  b}'  those  who  control  the  action  of  the 
legislature.  Opposition  is  sometimes  manifested  ;  but  it  is  ever3'where 
acknowledged  that  the  legislature  possesses  the  power  to  divide  counties 
and  towns  at  its  pleasure'  and  to  apportion  the  common  property  and 
the  common  burdens  in  such  manner  as  to  them  may  seem  reasonable 
and  equitable.  School  Society  v.  School  Society^  14  Conn.  469  ;  Bridgf/ 
Co.  V.  East  Hartford.,  16  id.  172 ;  Hampshire  v.  Franklin,  16  Mass. 
76;  North  Hemsteady.  Hemstead,  2  Wend.  109  ;  Montpelier  v.  East 


^  .£«^ 


24 


LARAMIE   COUNTY   V.   ALBANY   COUNTY. 


Montpelier,  29  Vt.  20;  Sill  v.  Corning,  15  N.  Y.  197;  Peojyie  v. 
Draper^  id.  549  ;  Waring  v.  May  or  ^  24  Ala.  701  ;  Mayor  v.  77*6 
xS^aife,  15  Md.  376  ;  Ashby  v.  Wellinyto?i,  8  Pick.  524  ;  Baptist  So.  v. 
CancUa,  2  N.  H.  20  ;  Denton  v.  Jackson.,  2  Johns.  Cb.  320. 

Political  subdivisions  of  the  kind  are  always  subject  to  the  general 
'aws  of  the  State  ;  and  the  Supreme  Court  of  Connecticut  decided  that 
'he  legislature  of  that  State  have  immemorially  exercised  the  power  of 
Jividing  towns  at  their  pleasure,  and  upon  such  division  to  apportion 
^he  common  property*  and  the  common  burdens  as  to  them  shall  seem 
reasonable  and  equitable.  Granhy  v.  Thurston.,  23  Conn.  419  ;  Yar- 
mouth V.  Skilli?igs,  45  Me.  142;  Langworthy  v.  Dubuque.,  16  Iowa, 
273  ;  Justices'  Opinion.,  6  Cush.  577. 

Such  corporations  are  the  mere  creatures  of  the  legislative  will ;  and, 
inasmuch  as  all  their  powers  are  derived  from  that  source,  it  follows 
that  those  powers  may  be  enlarged,  modified,  or  diminished  at  an}'  time, 
without  their  consent,  or  even  without  notice.  The}'  are  but  subdivi- 
sions of  the  State,  deriving  even  their  existence  from  the  legislature. 
Their  officers  are  nothing  more  than  local  agents  of  the  State  ;  and  their 
powers  ma}'  be  revoked  or  enlarged  and  their  acts  may  be  set  aside  or 
confirmed  at  the  pleasure  of  the  paramount  authority,  so  long  as  private 
rights  are  not  thereby  violated.     Mussel  v.  Meed.,  27  Penn.  St.  170. 

Civil  and  geographical  divisions  of  the  State  into  counties,  town- 
ships, and  cities,  said  Thompson,  C.  J.,  had  its  origin  in  the  necessities 
and  convenience  of  the  people  ;  but  this  does  not  withdraw  these  munie- 
ip.al  divisions  from  the  supervision  and  control  by  the  State  in  matters 
of  internal  government.  Proof  of  that  is  found  in  the  fact  that  the 
legislature  often  exercises  the  power  to  exempt  property  liable  to  taxa- 
tion, and  in  many  other  instances  imposes  taxes  on  what  was  before 
exempt,  or  increases  the  antecedent  burdens  in  that  behalf.  It  changes 
county  sites,  and  orders  new  roads  to  be  opened  and  new  bridges  to 
be  built  at  the  expense  of  the  counties ;  and  no  one,  it  is  supposed, 
disputes  the  exercise  of  such  powers  by  the  legislature.  Bur7is  v. 
Clarion  County,  62  Penn.  St.  425  ;  Peop)le  v.  Pinkney.,  32  N.  Y.  393  ; 
St.  Louis  V.  Mussell,  9  Mo.  507. 

Old  towns  may  be  divided,  or  a  new  town  may  be  formed  from  parts 
of  two  or  more  existing  towns  ;  and  the  legislature,  if  they  see  fit,  may 
apportion  the  common  property  and  the  common  burdens,  even  to  the 
extent  of  providing  that  a  certain  portion  of  the  property  of  the  old 
town  shall  be  transferred  to  the  new  corporation.  Drlstol  v.  iVeto 
Chester,  3  N.  H.  521. 

In  dividing  towns,  the  legislature  may  settle  the  terms  and  conditions 
on  which  the  division  shall  be  made.  It  may  enlarge  or  diminish  their 
territorial  liabilities,  may  extend  or  abridge  their  privileges,  and  may 
impose  new  liabilities.  Towns,  says  Richardson,  C.  J.,  are  public  cor- 
porations, created  for  purposes  purely  public,  empowered  to  hold  prop- 
ertv,  and  invested  with  manv  functions  and  faculties  to  enable  them  to 
answer  the  purposes  of  their  creation. 


LARAMIE  COUNTY  V.    ALBANY  COUNTY.  25 

There  must,  in  the  nature  of  things,  be  reserved,  by  necessary  impli- 
cation, in  the  creation  of  such  corporations,  a  power  to  modify  them  in 
such  manner  as  to  meet  the  public  exigencies.  Alterations  of  the  kind 
are  often  required  by  public  convenience  and  necessity;  and  we  have 
the  authority  of  that  learned  judge  for  saying  that  it  has  been  the  con- 
stant usage,  in  all  that  section  of  the  Union,  to  enlarge  or  curtail  the 
power  of  towns,  divide  their  territory,  and  make  new  towns,  whenever 
the  convenience  of  the  public  requires  that  such  a  change  should  be 
made. 

Half  a  century  ago,  when  that  decision  was  made,  the  authority  of 
the  legislature  to  make  such  a  division  of  a  municipal  corporation  was 
deemed  to  be  without  doubt ;  and  the  same  court  decided  that  the 
power  to  divide  the  property  of  a  municipal  corporation  is  necessarily 
incident  to  the  power  to  divide  its  territory-  and  to  create  the  new  cor- 
poration. Darlington  v.  Ma>jo)\  31  N.  Y.  195  ;  Clinton  v.  Railroad^ 
24  Iowa,  475  ;  Layton  v.  Nexo  Orleans.,  12  La.  Ann.  516. 

Cases  doubtless  arise  where  injustice  is  done  b}-  annexing  part  of  one 
municii):i!  corporation  to  another,  or  b}'  the  division  of  such  a  corpora- 
fion  and  the  creation  of  a  new  one,  or  b}'  the  consolidation  of  two  or  i  ts^^C-\^ 
more  such  corporations  into  one  of  larger  size.     Examples  illustrative^ 
of  these  suggestions  may  easily  be  imagined.     (1.)  Consolidation  will 
work  injustice  where  one  of  the  corporations  is  largely  in  debt  and  the  ;         _r^^v- 
other  owes  nothing,  as  the  residents  in  the  non-indebted  municipality   ; 
must  necessarilv  submit  to  increased  burdens  in  consequence  of  the  ■ 
indebtedness  of  their  associates.     (2.)  Like  consequences  follow  where/ 
the  change  consists  in  annexing  a  part  of  one  municipal  corporation  to 
another,  in  case  the  corporation  to  which  those  set  off  are  annexed  is 
greatly  more  in  debt  than  the  corporation  from  which  thej'  were  set  off. 

Hardships  may  also  be  suffered  by  the  corporation  from  which  a 
portion  of  its  inhabitants,  with  their  estates,  ma}-  be  set  off,  in  case 
the  corporation  is  largely  in  debt,  as  the  taxes  of  those  who  remain 
must  necessaril}'  be  increased  in  proportion  as  the  polls  and  estates 
within  the  municipalit\'  are  diminished.  Even  greater  injustice  may 
arise  in  cases  where  the  legislature  finds  it  necessary  to  circumscribe 
the  jurisdiction  of  a  county  or  town  by  dividing  their  territor}',  and 
creating  new  counties  or  towns  out  of  the  territorj'  withdrawn  from 
their  former  boundaries. 

Legislative  acts  of  the  kind  operate  differently  under  different  cir- 
cumstances. Instances  ma}'  be  given  where  the  hardship  is  much  the 
greatest  towards  the  new  municipality,  as  where  the  great  body  of  the 
property  and  improvements  are  left  within  the  new  boundaries  of  the 
old  corporation.  Other  cases  are  well  known  where^the  hardship  is 
much  greater  towards  the  old  corporation,  as  where  the  newly-created 
subdivision  embraces  within  its  boundaries  all  the  public  buildings  and 
most  of  the  public  improvements  and  the  most  valuable  lands.  Cir- 
cumstances of  the  kind,  with  many  others  not  mentioned,  show  beyond 
doubt  that  such  changes  in  the  subdivisions  of  a  State  often  present 


26 


JOHNSON   V.   CITY    OF   SAN   DIEGO. 


matters    for   adjustment   involving    questions   of    great   delicac}'   and 
difficult}'. 

Allusion  was  made  to  this  subject  b}'  the  Supreme  Court  of  New 
Hampshire  in  the  case  to  which  reference  has  already  been  made. 
3  N.  H.  534.  Speaking  of  the  power  to  divide  towns,  the  court  in 
that  case  say  that  the  power  in  that  regard  is  strictly  legislative ; 
and  that  the  power  to  prescribe  the  rule  by  which  a  division  of  the 
property  of  the  old  town  shall  be  divided  is  incident  to  the  power  to 
divide  the  territor}',  and  is  iti  its  nature  2'>urely  legislative.  No  general" 
rule  can  be  prescribed  by  which  an  equal  and  just  decision  in  such  cases 
can  be  made.  Such  a  division,  sa}'  the  court  in  that  case,  must  be 
founded  upon  the  circumstances  of  each  particular  case ;  and  in  that 
view  the  court  here  entirel}'  concurs.  Powers  v.  Commissioners  of 
Wood  County.,  8  Ohio  St.  290 ;  Shelby  County  v.  Railroad.,  5  Bush, 
228  ;    Ohiey  v.  Harvey,  50  111.  455. 

Regulation  upon  the  subject  may  be  prescribed  b}'  the  legislature ; 
but,  if  the}'  omit  to  make  any  provision  in  that  regard,  the  presumption 
must  be  that  they  did  not  consider  that  any  legislation  in  the  particular 
case  was  necessar}'.  Where  the  legislature  does  not  prescribe  any  such 
regulations,  the  rule  is  that  the  old  corporation  owns  all  the  public 
propert}'  within  her  new  limits,  and  is  responsible  for  all  debts  con- 
tracted by  her  before  the  act  of  separation  was  passed.  Old  debts 
she  must  pay,  without  any  claim  for  contribution  ;  and  the  new  sub- 
division has  no  claim  to  any  portion  of  the  public  propert}'  except  what 
falls  within  her  boundaries,  and  to  all  that  the  old  corporation  has  no 
claim.  North  Ilemstead  v.  Hemstead,  2  Wend.  134  ;  Dil.  on  Mun. 
Corp.,  sect.  128;  Wade  v.  Richmond.,  18  Gratt.  583;  Hiyginhotham 
V.  Com. ,  25  id.  633. 

Tested  by  these  considerations,  it  is  clear  that  there  is  no  error  in 
the  record. 

Decree  afirmed. 


':|'*^., 


JOHNSON  ET  AL.    V.  CITY  OF   SAN   DIEGO.  ^<  ^. 

1895.     109  Ca/i>rma,  468.1  ~t^_'^ 

By  virtue  of  the  act  of  the  legislature  of  March  19,  1889,  and  of  a     ''-^ 
vote  at  an  election  held  thereunder,  a  portion  of  the  territorv  formerly '^'^-^^* 
embraced  within  the  corporate  limits  of  the  cit}'  of  San  Diego  waa'^-.j-p 
excluded  therefrom.     The  said  act  of._l,2S*^,  as  interpreted  by  the  court,/  ^ 
also  provided  that  the  segregated  territory  (which  was  known  as  the^,^..^^ 


Coronado  beach)  should,  after  exclusion,  be  liable  for  its  pro  rata^^J/^. 

3  original  municipal  corporation  con-T?*'^ 
tracted  prior  to  such  exclusion.  ^v* 


share  of  the  indebtedness  of  the  original  municipal  corporation  con- 


In  1^3  (Statutes  1893,  p.  536)  the  legislature  passed  an  act  pro"^^- 
*  Statement  ebridgeJ  from  opinion.     Arguments  omitted.  —Ed. 


■\ 


1 


::^..J^ 


JOHNSON   V.   CITY   OF   SAN   DIEGO.  27 

viding  for  "the  adjustment,  settlement,  and  payment  of  any  indebted- 
ness existing  against  any  city  or  municipal  corporation  at  the  time  of 
exclusion  of  territory  tlierefrom  and  tlie  division  of  pioperty  thereof." 

Under  this  act,  any  territory  which  "  has  been  or  shall  be  "  excluded 
from  any  municipal  corporation  shall  not  be  subject  to  the  payment  of 
any  indebtedness  existing  at  the  time  of  exclusion,  if  the  court  find 
that  the  value  of  the  property  belonging  to  said  municipal  corporation, 
and  "vvTiich  remains  within  the  boundaries  thereof  after  such  exclusion, 
exceeds  the  value  of  municipal  property'  situated  in  such  excluded  ^  j 

terrltor}',  and  also  exceeds  the  pro  rata  portion  of  the  indebtedness  \r^  '""^^ 
of  the   municipal    corporation    due  from   such   excluded   territory   as    rm,,2-/tj^ 
shown  by  the  assessment  made  immediately  preceding  such  exclusion.      ]-%^UjJ>  C 
Plaintiffs  availed  themselves  of  the  pi'ovisions  of  this  act  to  have  the  —     a 

court  determine  what  proportion,  if  anj',  of  the  bonded  indebtedness     a 
of  San  Diego  was  properly  chargeable  against  the  excluded  territory'.  \ 

Under  certain  findings  of  fact,  and  in  strict  accord  with  the  dictates      s 
of  the  statute,  the  court  adjudged  that  there  was  nothing  due  or  to  nch'^-^^ 
become  due  from  the  excluded  territory  to  the  city.  l<t~-')^ 

The  city  of  San  Diego  appealed  from  the  judgment.  Cb-vAr\-v^-^ 

William  H.  Fuller  and  Clarence  L.  Barber,  for  appellant.  Q^^ 

Gibson  &  Titus,  and  Samuel  31.  Shortridge,  for  respondent.  —    4^*- 

Henshaw,  J.     [After  stating  the  case.]    The  chief  contention  of  the     ^^J(,Jk^„ 
defendant,  raised  upon  demurrer,  pressed  in  its  motion  for  a  nonsuit  'y*,,^^ 
and  urged  against  the  judgment,  may  be  thus  stated :  The  property  /, 
owners  of  the  city  and  the  property  owners  of  the  excluded  territory, ' 
when  in  accordance  with  the  permissive  act  of  the  legislature  (Stats,    f'^^^^^-'',  ^ 
1889,  p.  356)  they  elected  to  segregate  Coronado  beach,  did  so  under     (V-*^!^ 
a  contract  expi-essed  in  the  act  itself,  by  which  the  property  owners    <?^^^ 
of  the  excluded  territory  were  allowed  to  remove  their  land  from  the     ir^^ 
jurisdiction  of  the  city  with  the  understanding  that  they  should  con-      '""'"^^ 
tinue  to  pay  their  pro  rata  share  of  the  municipal  debts  existing  at 
the  time  of  the  exclusion  ;  that  the  rights  of  the  city  vested  under  this 
contract  cannot  be  destroyed  or  impaired  by  subsequent  legislation, 
and  that  therefore  to  the  parties  to  this  controversy  the  statute  of 
1893  has  no  applicability.  ~" 

•  •••  •••• 

The  question  that  is  left  for  consideration  is  that  of  the  power  of 
the  legislature  to  change  and  readjust  the  burden  of  such  an  indebted- 
ness, after  having  in  the  act  of  separation  declared  in  what  manner  it 
should  be  borne. 

Municipal  corporations  in  their  public  and  political  aspect  are  not 
onl}'  creatures  of  the  state,  but  are  parts  of  the  machinery  by  which 
the  state  conducts  its  governmental  affairs.  Except,  therefore,  as 
restrained  by  the  constitution,  the  legislature  ma}-  increase  or  diminish" 
the  powers  of  such  a  corporation  —  maj*  enlarge  or  restrict  its  terri- 
torial jurisdiction,  or  may  destroy'  its  corporate  existence  entirely. 
Sa^s  Cooley :  "Restraints  on  the  legislative  power  of  control  must  be 


28  JOHNSON    V.   CITY   OF   SAN   DIEGO. 

found  in  the  constitution  of  the  state,  or  they  must  rest  alone  in  the 
legislative  discretion.  If  the  legislative  action  in  these  cases  operates 
injuriously  to  the  municipalities  or  to  individuals,  the  remed}'  is  not 
with  the  courts.  The  courts  have  no  power  to  interfere,  and  the  people 
must  be  looked  to  right  through  the  ballot-box  all  these  wrongs." 
(Cooley  on  Constitutional  Limitations,  6th  ed.,  229.) 

"A  city,"  .says  Mr.  Justice  Field,  in  New  Orleans  v.  Clark^  95 
U.  S.  644,  "  is  only  a  political  subdivision  of  the  state,  made  for  the 
convenient  administration  of  the  government.  It  is  an  instrumen- 
tality, with  powers  more  or  less  enlarged  according  to  the  require- 
ments of  the  public,  and  which  may  be  increased  or  repealed  at  the 
will  of  the  legislature." 

This  right  of  legislative  control,  arising  from  the  very  nature  of  the 
creation  of  such  corporations,  is  establislied  under  the  well-settled 
doctrine  that  such  corporations  have  no  vested  rights  in  powers  con- 
ferred upon  them  for  civil,  political,  or  administrative  purposes,  or 
as  Dillon  states  it:  "Legislative  acts  respecting  the  political  and 
governmental  powers  of  municipal  corporations  not  being  in  the  nature 
of  contracts,  the  provisions  thereof  may  be  changed  at  pleasure  where 
the  constitutional  rights  of  creditors  and  others  are  not  invaded." 
(Dillon  on  Municipal  Corporations,  4th  ed.,  sec.  63.) 

The  act  of  the  legislature  in  relieving  Coronado  beach  from  the  corpo- 
rate control  of  San  Diego,  and  in  adjusting  the  burden  of  the  city's  debt, 
was  undoubtedly  the  exercise  of  a  proper  power  directed  to  the  politi- 
cal and  governmental  affairs  of  the  municipalit}-.  That  the  legislature 
hy  the  terms  of  the  act  segregating  the  territory  had  the  right  to  dis- 
pose of  the  common  property,  and  provide  the  mode  and  manner  of 
the  payment  of  the  common  debt,  imposing  its  burden  in  such  propor- 
^tions  as  it  saw  fit,  is  a  proposition  undisputed  and  undisputable.  It  is 
U  \  equally  well-settled  law  that  when  the  act  of  segregation  is  silent  as  to 

^  k\  the  common  property  and  common  debts,  the  old  corporation  retains 
y^A^T^  all  the  property  within  its  new  boundaries,  and  is  charged  with  the 
ijyjv^^^*\  payment  of  all  of  the  debts.  Upon  these  two  propositions  the  cases 
^  are  both  numerous  and  harmonious.     {People  v.  Alameda  County^ 

"^  26  Cal.  Q41  ;  Hughes  v.  SJicing,  93  Cal.   414;  Z/Os  Angeles   County 

V.  Orange  County,  97  Cal.  329  ;  Town  ofDepere  v.  Tow7i  of  Bellevue^ 
31  Wis.  120  ;  11  Am.  Rep.  602  ;  Laramie  County  v.  Albany  County^ 
92  U.  S.  307  ;  Lycoming  v.  Union,  15  Pa.  St.  166  ;  53  Am.  Dec.  575; 
Mount  Pleasant  v.  Beckwith,  100  U.  S.  514  ;  Lay  ton  v.  New  Orleans^ 
12  La.  Ann.  515  ;  Beloit  v.  Morgan,  7  Wall.  619.) 

There  is  authorit}',  however,  holding  that  when  the  legislature  has 
spoken  in  the  original  act,  rights  vest  under  it  which  ma}'  not  be  im- 
jipaired,  and  it  is  upon  these  cases  that  appellants  rely. 

Thus  in  Bowdoinham  v.  Bichmo7id,  6  Me.  112,  19  Am.  Dec.  197, 
the  supreme  court  of  Maine  decided  in  1829  that  as  the  act  of  the 
)egi3lature  dividing  the  town  of  Bowdoinham  and  incorporating  a  part 
pf  it  into  a  new  town  by  the  name  of  Richmond,  enacted  that  the  latter 


JOHNSON   V.    CITY   OF   SAN   DIEGO. 


29 


Bhoiild  be  held  to  pay  its  proportion  toward  the  support  of  all  pauperi 
then  on  expense  in  Bowdoinham,  a  later  act  exonerating  the  new  town 
from  this  liabilitj'  was  void.  The  court  held  that  by  the  former  act  a 
vested  right  of  action  arose  in  favor  of  the  old  town  against  the  new, 
and  that  the  later  act  in  destroying  this  right  impaired  the  obligation 
of  the  contract  on  the  part  of  Richmond  created  by  the  first  act.  Just 
how  the  court  reached  the  conclusion  that  a  contract  was  created  b}' 
the  first  act  is  not  plain,  but  it  seems  to  have  been  based  somewhat 
upon  the  conviction  that  the  assent  of  the  old  town  was  necessarj'  to 
the  segregation. 

The  opinion,  however,  looks  for  authority  to  the  case  o^  Hampshire 
Coxmtu  V.  Franklin  County^  16  Mass.  76,  decided  in  1819.  In  that 
case  the  legislature  had  created  the  county  of  Franklin  out  of  territory 
formerly  a  part  of  the  county  of  Hampshire.  The  act  was  silent  as 
to  the  disposition  of  the  public  propert}-  and  the  public  debt.  By  an 
act  passed  two  years  later  the  legislature  provided  in  effect  that  if  at 
the  time  of  the  segregation  there  were  funds  belonging  to  the  county  of 
Hampshire  in  excess  of  its  debts,  the  new  county  should  be  entitled' 
to  such  proportion  of  those  funds  as  the  assessed-Xalu.e  of  the  property 
of  the  new  count}'  bore  to  the  assessed  value  of  the  property  of  the 
old.  The  supreme  court  decided  in  accordance  with  the  undoubted 
rule  that  as  the  first  act  was  silent  upon  the  subject,  all  of  the  com- 
mon property  within  its  limits  belonged  to  the  old  county,  which 
was  likewise  charged  with  all  existing  debts.  It  further  held  that 
rights  vested  under  this  act,  and  that  the  later  act  providing  for  an 
apportionment  violated  these  rights  in  attempting  to  give  the  property 
of  Hampshire  to  Franklin  county  ;  in  other  words,  that  the  later  act 
created  a  debt  from  Hampshire  to  Franklin  county,  which  before  had 
not  existed. 

It  is  to  be  noticed  that  in  this  case  the  original  act  was  silent  as  to 
common  propert}'  and  debts,  but  as  in  such  case  the  law  steps  in  and 
makes  disposition  of  them,  the  silence  was  deemed  equivalent  to  an 
affirmative  declaration  of  the  legislature  making  disposition  which 
could  not  afterward  be  modified. 

But  distinguished  as  are  the  courts  which  have  announced  this 
doctrine,  their  views  have  not  been  followed,  and  the  decisions  them- 
selves have  been  elsewhere  criticised  and  rejected,  until  it  ma}-  be 
safely  said  that  it  is  the  general  rule  that  where  the  original  act  does 
not  make  disposition  of  the  common  property  and  debts  the  legislature 
ma}'  at  any  subsequent  time  by  later  act  apportion  them  in  such  man- 
ner as  seems  to  be  just  and  equitable. 

Under  the  decisions  adopting  this  rule  ^he  theory  of  vested  rights 
an<l  contractual  relations,  is  rejected  as  being  a  false  quantity  in  the 
Slealings  of  the  sovereign  state  with  its  governmental  agents  and"ffiHti- 
datoiics.  And  while  it  is  not  denied  that  the  state  may  make  aT con- 
tract with  a  municipal  corporation,  or  may  permit  municipal  corpora- 
tons  to  enter  into  binding  contracts  with  each  other,  which  contracts 


i^^ 


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30  JOHNSON   V.    CITY   OF   SAN   DIEGO. 

it  cannot  impair,  these  contracts  must  be  in  their  nature  private, 
although  the  public  ma}'  derive  a  common  benefit  from  them,  and  the 
contracting  cities  are  as  to  them  measured  by  the  same  rules  and 
entitled  to  the  same  protection  as  would  a  private  corporation.  The 
subject  of  such  a  contract,  however,  can  never  be  a  matter  of  munici- 
paTpolity  or  of  civil  or  political  power,  for  the  legislature  itself  cannot 
surrender  its  supremacy  as  to  these  things  and  thus  abandon  its  pre- 
rogatives and  strip  itself  of  its  inherent  and  inalienable  right  of 
control. 

Of  the  cases  so  holding,  either  directly  or  impliedh',  a  few  maj^  prof- 
itabl}'  be  mentioned.  [The  court  here  referred  to  Count]/  of  Rich- 
land V.  County  of  Laicrence,  12  111.  1  ;  Perry  County  v.  Conway 
County,  52  Ark.  430  ;  Dunmore' s  Appeal^  52  Pa.  State,  430  ;  Layton 
V.  N'ew  Orleans^  12  La.  Ann.  515  ;  and  Mayor  of  Baltimore  v.  State^ 
15  Maryland,  376.] 

Says  Dillon  on  Municipal  Corporations,  fourth  edition,  section  189  : 
"  But  upon  the  division  of  the  old  corporation,  and  the  creation  of 
a  new  corporation  out  of  a  part  of  its  inhabitants  and  territorj',  or 
upon  the  annexation  of  part  of  another  corporation,  the  legislature 
may  provide  for  an  equitable  apportio7iment  or  division  of  the  prop- 
erty and  impose  upon  the  new  corporation,  or  upon  the  people  and 
territory  thus  disannexed,  the  obligation  to  pay  an  equitable  proportion 
of  the  corporate  debts.  The  charters  and  co?2stituent  acts  of  public 
and  municipal  corporations  are  not,  as  we  have  before  seen,  contracts, 
a7id  they  may  he  changed  at  the  pleasure  of  the  legislature,  subject 
only  to  the  restraints  of  special  constitutional  provisions,  if  any  there 
'  be.  And  it  is  an  ordinar}'  exercise  of  the  legislative  dominion  over 
such  corporations  to  provide  for  their  enlargement  or  division,  and, 
incidental  to  this,  to  apportion  their  property  and  direct  the  manner  in 
which  their  debts  or  liabilities  shall  be  met  and  by  whom.  The  opin- 
ion has  been  expressed  that  the  partition  of  the  property  must  he  made 
at  the  time  of  the  division  of  or  change  in  the  corporation,  since  other- 
wise the  old  corporation  becomes,  under  the  rule  just  above  stated, 
the  sole  owner  of  the  propert}',  and  hence  cannot  be  deprived  of  it  by 
a  subsequent  act  of  the  legislature.  But,  in  the  absence  of  special 
constitutional  limitations  upon  the  legislature,  this  view  cannot,  per- 
haps, be  maintained,  as  it  is  inconsistent  with  the  necessary  suprem- 
ac}'  of  the  legislature  over  all  its  corporate  and  unincorporate  bodies, 
divisions,  and  parts,  and  with  several  well-considered  adjudications." 

To  the   same  general  effect  are  the  cases  of  Ijnramie    County  v. 
■j;^    .  Albany  Comity,  supra  ;  Mount  Pleasant  y.  Beckwith,  supra  ;  Scituate 
\  V.  Weymouth,  108  Mass._  1_2_$ ;    Willimantic  School  Society  v.  Fii'st 
School  Society,  14  Conn.  457  ;   Guilford  v.  Supervisors,!^  N.  Y.  143. 

In  this  state  the  power  of  the  legislature  to  make  such  subsequent 
adjustments  was  early  declared  in  Peojde  v.  Alameda  Coimty,  supra. 
Alameda  count}'  was  created  out  of  the  territory  of  Contra  Costa 
county  in  1853.     At  the  time  of  the  separation  Contra  Costa  countj 


BROOMFIELD   V.    GLEX   KIDGE.  ol 

owed  for  a  bridge  which  had  lieen  constructed  upon  the  territor}'  set 
apart  to  Alameda  county.  The  original  act  made  no  provision  for  the 
payment  of  this  indebtedness,  which  thus  remained  a  charge  against 
the  old  county.  By  two  separate  later  acts  the  legislature  provided 
for  the  apportionment  of  the  debt,  putting  a  part  of  the  burden  upon 
Alameda  county.  These  acts  were  upheld  as  a  proper  exercise  of 
legislative  power. 

And,  i-ndeed,  it  is  not  easy  to  see  how  the  opposite  view  can  be 
maintained.  Since  the  legislative  power,  within  constitutional  limita- 
tions, is  supreme  in  the  matter ;  since,  in  the  first  apportionment  the 
people  affected  are  entitled  to  no  voice  (except  through  their  repre- 
sentatives), and  since  the  act  of  the  legislature  is  not  in  the  nature 
of  a  contract,  it  cannot  logically  be  held  that  the  power  has  been 
exhausted  by  its  first  exercise.  The  right  still  remains  to  make  such 
future  adjustments  as  the  equities  may  suggest. 

Nor  in  the  operation  of  the  act  in  question  upon  the  city  of  San 
Diego  can  we  perceive  any  hardship.  It  had  at  the  time  of  the  segre- 
gaii6n~six  hundred  thousand  dollars,  acquired  while  Coronado  beach 
was  a  part  of  its  territory,  and  partially  acquired,  doubtless,  by  tax- 
ation upon  this  land.  All  of  this  property  it  retains.  All  of  the 
moneys  evidenced  bj'  the  bonded  indebtedness  were  expended  within 
its  present  territorial  limits,  and  no  dollar  of  it  went  to  improve  the 
excluded  territor}'.  Having  all  of  the  common  propert}'  and  all  of  the 
fruits  of  the  common  debt,  it  is  certainly  not  onerous  or  oppressive 
that  it  should  be  asked  to  pay  for  what  has  been  expended  for  its 
exclusive  benefit.  In  a  certain  sense,  it  is  true  that  Coronado  beach 
was  also  benefited  by  these  expenditures.  In  the  same  sense  San 
Mateo  county  is  benefited  b}*  the  public  improvements  of  the  cit}'  and 
count}-  of  San  Francisco,  but  it  has  never  been  asserted  that  for  such 
benefits  a  sister  county  should  be  called  upon  to  pa}'. 

The  judgment  and  order  appealed  from  are  affirmed. 

Harrison,  J.,  Temple,  J. ,  Van  Fleet,  J. ,  Garoctte,  J.,  and  Beatty, 
C.  J.,  concurred. 


f^' 


BLOOMFIELD   v.   GLEN  RIDGE. 

1896.     54  New  Jersey  Eguity,  276.'^ 

Bill  in  equity,  by  Inhabitants  of  the  Township  of  Bloomfield  against 
the  Mayor  and  Council  of  the  Borough  of  Glen  Ridge  ;  praying  for  an 
injunction,  restraining  defendants  from  interfering  with  the  complain- 
ant's sewers  within  the  limits  of  the  borough  and  from  exercising  any 
management  over  such  sewers.  The  allegations  of  the  bill  are  suflS- 
I'iently  stated  in  the  opinion. 

I">efendants  demurred. 

1  Statement  abridged. —  Ed. 


52 


BLOOMFIELD   V.   GLEN  RIDGE. 


'^ 


.!-^  *1 


George  S.  Hilton,  for  complainant. 

Joseph  G.  Gallagher  and  Joseph  Coult,  for  defendants. 

Reed,  V.  C.  It  appears  that  the  township  of  Bloomfield,  together 
with  the  city  of  Orange  and  the  township  of  Montclair,  built  an  outlet 
Bewer,  each  to  pay  its  proportion  of  the  expenses  ;  that  Bloomfield  has 
raised  its  proportion  by  issuing  bonds,  which  are  still  outstanding.  It 
V^  iS^ppears  that  the  township  of  Bloomfield  also  constructed  lateral  sewers 
through  its  streets  and  paid  for  them  $30,863.97. 

It  appears  that  since  the  construction  of  these  sewers,  a  new  bor- 
ough has  been  organized,  called  the  borough  of  Glen  Ridge.  It  also 
appears  that  a  portion  of  the  territory  of  the  township  of  Bloomfield 
has  been  included  within  the  limits  of  the  new  borough,  and  that  a 
number  of  streets  in  which  these  lateral  sewers  were  placed,  are  now 
within  the  territorial  limits  of  the  borough.  The  question  which  tlie 
bill  attempts  to  raise  is,  whether  the  right  to  control  the  use  of  such 
sewers  as  now  lie  within  the  borough,  has  passed  to  the  borough  gov- 
ernment, or  whether  it  still  resides  in  the  township  authority. 

The  contention  on  the  part  of  the  township  is,  that  it  paid  for  these 
laterals,  and  is  liable  to  pay  for  its  part  of  the  cost  of  the  main  sewer, 
by  means  of  which  the  laterals  became  usable  ;  that  the  title  in  the 
laterals  still  resides  in  it,  and  that  it  has  the  right  to  control  and  use 
its  own  propert}'. 

It  is  stated  in  the  bill,  for  the  purpose  of  adding  to  the  force  of  this 
contention,  that  these  sewers  were  built  to  be  operated  as  a  single  S3's- 
tem,  and  that  it  has,  under  a  contract  with  the  township  of  Montclair, 
become  liable  to  pay  a  proportionate  share  of  the  expense  of  building 
and  maintaining  the  sewer  through  the  temitory  of  Glen  Ridge.  I  do 
not  perceive  that  these  facts  can  influence  the  decision  of  the  question 
in  hand.  The  sewers  must  be  regarded  as  an}'  other  corporate  prop- 
erty for  which  the  municipality  has  paid,  or  for  which  it  is  liable  to 
pay,  either  b}-  reason  of  its  outstanding  bonds  or  by  the  terras  of  a 
contract  still  outstanding.  It  is  corporate  property,  and  the  quer}-  is, 
io  whom  does  the  right  to  use  and  control  it  belong  after  it  is  thrown 
into  the  new  municipality  ?  Many  of  the  questions  which  spring  out  of 
the  divisions  of  the  territory  of  a  municipalit}'  in  respect  to  the  prop- 
erty of  the  old  municipality  are  entirely  settled.  For  instance,  it  is 
settled  that  the  legislature,  by  virtue  of  its  control  over  municipal 
corporations,  has  the  abilit}"  to  fix  the  rights  of  the  new  and  the  old 
corporations  in  the  property,  and  to  adjust  the  burden  of  the  corporate 
debts.     Dill.  Mim.  Corp.  §  127. 

It  is  also  settled  that  where  no  legislative  adjustment  is  provided 
for,  then  the  old  corporation  remains  liable  for  all  the  debts.  DHL 
Mun.  Corp.  §  128.  It  is  also  settled  that  all  transitory  property, 
such  as  bonds,  money  in  sinking  funds  and  property  of  that  class, 
and  all  real  estate  that  lies  within  the  limits  of  the  old  corporation, 
remains  the  property-  of  the  old  municipality. 

But  in  respect  to  property  used  for  public  purposes,  such  as  engine* 


,/v/^ 


U-^ 


l-!»V- 


BLOOMFIELD   V.    GLEN   PJDGE. 


33 


houses,  school-houses,  puhlic  markets,  which  are  located  upon  lands 
whicli  fall  within  the  limits  of  the  new  corporation,  there  exists  some 
contrarietj-  of  judicial  sentiment.  There  are  cases  which  hold  that 
the  old  corporation  is  not  stripped  of  its  title  to  such  property.  In 
Whitier  v.  Sanborn^  38  Me.  32,  it  was  held  that  the  alterations  of  the 
lines  of  the  school  district,  whereby  a  school-house  was  left  in  another 
dis<^rict,  would  not  change  the  right  of  property  therein.  It  was  also 
said,  obiter,  in  School  District  v.  Richardson,  23  Pick.  G2,  that  the 
alteration  of  the  lines  of  a  school  district  would  not  change  the  prop- 
erty' rights  of  the  old  district  in  a  school-house  thrown  outside  of  it3 
limits. 

In  Board  of  Health  of  Buetia  Vista  Toit^nship  v.  City  of  East 
Saginaw,  45  Mich.  257,  land  had  been  conveyed  to  the  board  of 
health  in  trust  for  cemetery  purposes  for  the  township  of  Buena 
Vista.  Afterwards,  the  c\t\  of  East  Saginaw  was  incorporated,  in- 
cluding the  cemetery.  The  court  held  that  there  was  no  common-law 
rule  by  wliich  property  can  be  transferred  from  one  corporation  to 
another  without  a  grant,  and  as  there  was  no  statute,  the  property 
was  "unaffected  b}'  the  change  of  corporate  lines. 

In  Winona  v.  School  District  No.  82, 40  Minn.  13,  a  school-house,  by 
the  altei-ation  of  the  city  lines,  had  been  thrown  within  the  city  limits; 
It  was  held  that  the  old  district  still  retained  title  to  the  school-house. 
The  opinion  of  this  case  reviews,  exhaustively,  the  cases  which  have 
dealt  with  the  subject.  These  cases,  as  is  perceived,  involve  the  ques- 
tion of  title  to  school-houses,  cemeteries,  and  ministers'  houses,  which, 
b}-  reason  of  the  manner  in  which,  and  the  purpose  for  which,  they 
are  usable,  may  possibly  be  distinguishable  from  other  kinds  of  munic- 
ipal property  lying  within  the  new  territory.  But  the  reasoning  upon 
which  some  of  the  cases  go,  viz.,  that  there  is  no  other  way  by  wbich 
thej)kl  corporation  can  be  deprived  of  its  title  except  through  its  own 
grant  or  by  express  legislation,  seems  to  include,  within  the  rule  an- 
nounced, property  of  all  kinds. 

Opposed  to  the  theory  of  these  cases,  there  are  dicta  of  great  weight  \ 
in  favor  of  an  opposite  rule  as  the  better  one,  viz.,  that  property  fixed  l 
to  the  land  within  the  new  corporation  becomes  the  property  of  that 
municipalit}'.  'J'he  cases  in  which  this  doctrine  has  been  asserted  or 
approved  are  the  following:  Bridge  Company  v.  East  Hartford,  16 
Conn.  171  ;  School  District  v.  Tapley,  1  Allen,  48  ;  Laramie  County 
V.  Albany  County,  92  U.  S.  315  ;  Mount  Pleasant  v.  Beckicith,  100 
U.  S.  525 ;  Board  v.  Board,  30  W.  Va.  424  ;  NortJi  Hemstead  v. 
Hemstead,  2   Wend.   109. 

In  m}'  judgment,  the  cases  which  hold  that  the  right  to  control  this 
kind  of  propert3'  remains  still  in  the  old  corporation,  press  unduly  the 
notion  that  there  must  be  an  express  grant  or  express  legislation  to 
pass  control  over  such  property'  to  the  new  municipalit3'.  The  title 
held  b}'  a  municipalit}'  is  of  a  peculiar  kind.  It  is  held  by  the  cor- 
poration  as  a   trustee  for  the  public.      Municipal  corporations   are 


■•"tf    '.V 


a 


SL€. 


-•"•"^.^ 


Uiifec. 


5-»'NAP*'>-<fi^ 


34  BLOOMFIELD   V.    GLEN   EIDGE. 

organized  for  the  purpose  of  creating  agencies  for  the  purchase,  con- 
etriicLion,  and  operation  of  such  appliances  as  are  essential  to  the 
health,  safety,  and  convenience  of  the  people  and  their  propertv.  The 
appliances  so  created,  whether  engine-house,  market-liouse,  school- 
house,  lamps,  water-pipes,  hydrants,  sewers,  are  so  distributed  as  to  be 
of  the  most  efficient  service  to  the  public  ;  they  are  brought  into  exis- 
tence to  be  so  used.  Now,  when  the  tenilorial  limits  of  a  corporation 
are  diminished  In'  the  excision  of  a  part  of  its  territory,  the  power  of 
control  of  the  public  agent  over  those  appliances  is  restricted  to  the 
newly-defined  limits  of  the  corporation.  This  is  admittedly  so,  unless 
the  legislature  docs  what  is  unusual,  confers  a  power  upon  its  agents 
to  act  extra-territorially.  It  is  entirely  settled  that  the  powers  of  city 
officers  are  extended  or  restricted  in  conformity  with  the  change'or'tlv& 
ibouhdaries  qf_a  jnuriicipalit}-.  EJivgott  v.  Mayor  of  Neio  York,  9G 
T:"2G4;^7.  Louis'Gaslight  Co.  v.  St.  Louis,  46  3Io.  121  ;  Toimi 
'of  Toledo  V.  Edens,  59  loira.,  352  ;  Coldwater  v.  Tucker.,  36  Mich. 
474  ;  Strauss  v.  Pontiac,  40  III.  301. 

It  follows,  therefore,  that  the  power  to  use  the  propertj'  lying  out 
side  of  the  boundaries  of  the  old  corporation  for  municipal  purposes  la 
extinct.  It  is  admitted  in  the  case  of  Wmona  v.  School  District  No.  82, 
suj)ra,  that  the  old  corporation  held  only  the  bare  title  to  the  school- 
house  which  by  change  of  line  was  thrown  into  the  city.  The  old 
corporation  could  only  sell  it  as  it  stood.  It  could  not  use  it  for 
the  purpose  to  which  it  had  been  built  and  devoted. 

Now,  as  a  matter  of  public  policy,  it  is  important  that  this  kind  of 
property  shall  be  continuoush*  emploj-ed  in  subserving  the  public  pur- 
pose for  which  it  was  created.  The  only  agency  existing  which  can  so 
use  it,  is  that  which  has  sprung  into  existence  b}'  the  organization  or 
creation  of  the  new  corporation.  Now,  it  seems  to  me  quite  as  reason- 
able to  sa}'  that  the  legislature,  by  conferring  the  power  to  create  the 
new  corporation,  imi^TTcTtl}'  conferred'  a  power  to  employ  all  public 
propert}'  found  within  its  limits,  as  it  is  to  say  that  it  meant  that 
this  property  should  lie  idle.  And  if  it  be  said  that  the  new  cor- 
poration may  purchase  it,  it  is  answered,  who  is  to  fix  the  price?  and, 
while  negotiations  are  pending,  who  is  to  control  and  use  this  public 
property  ? 

Now,  the  legislature  undoubtedh',  if  its  attention  was  called  to  this 
matter,  would  fix  upon  some  method,  judicial  or  otherwise,  by  which 
the  distribution  of  municipal  propert}'  and  municipal  debts  could  be 
adjusted  in  all  instances  like  the  one  under  consideration. 

But,  in  the  absence  of  such  legislation,  I  think  that  the  doctrine 
which  I  have  announced  is  the  most  conducive  to  the  public  interest. 
j^   \H*^  ^^^  ^^  ^^'  ^^  ^  rule,  more  inequitable  than  the  other.     WLcn  the  prop- 
V'**^^  erty  which  falls  within  the  new  corporation  is  still  to  be  paid  for,  it  is, 

of  course,  inequitable  that  the  whole  burden  of  payment  should  fall 
upon  the  old  corporation.  But  it_is_£Luite  likeh'  that  such  property, 
as  J  undfirstand  is  the  case  in  respect  to  the  lateral  sewers,  has  been 


BLOOMFIELD   V.   GLEN   EIDGE.  35 

alreadj*^  paid  for.  In  such  case,  the  people  in  tlie  new  government 
have  paid  their  proportion  of  the  expenses,  and  where  the  property 
is  of  a  kind  to  be  distributed  through  the  territorial  limits  of  the  old 
corporation,  like  lamp-posts,  hydrants,  water-pipes,  and  sewers,  it  is 
quite  probable  that  tlie  new  corporation  gets  no  more  b}'  the  altera- 
tion of  municipal  lines  than  its  inhabitants  have  paid  for. 

Upon  the  assumption,  therefore,  that  the  borough  and  the  township 
are  distinct  corporations,  I  am  of  the  opinion  that  the  complainants 
bave  exhibited  no  ground  for  the  relief  the}-  claim. 

The  complainants,  however,  insist  that  the  parties  to  this  suit  do 
not  stand  on  the  footing  of  distinct  municipalities. 

The  contention  is  that  the  borough,  organized  within  the  township 
limits,  does  not  exclude  the  control  of  the  township  over  all  the  objects 
~of  local  government ;  that,  like  the  city  of  PlainfieM  and  the  village 
of  "Flcmington  and  certain  commissions,  only  a  portion  of  the  local 
government  is  confided  to  it,  while  the  residue  remains  in  the  larger 
municipalit}'. 

Now,  it  is  undoubtedly  true  that  the  boroughs,  as  originally  formed 
under  the  act  of  1878,  did  not  possess  local  powers  co-extensive  with 
those  of  townships.  Many  of  the  objects  of  local  government  still 
remained  in  the  township ;  but  as,  by  supplements  to  the  acts  of 
1878,  the  powers  of  the  borough  government  were  enlarged  from 
time  to  time,  so,  jjan  passu,  those  of  the  townships  were  diminished, 
and  the  township  governments  were  necessarily*  excluded  from  any 
control  over  the  subjects  which  were  thus  confided  to  the  borough- 
government.  ""^ 

This  consequence  necessarily  results  from  the  well-settled  doctrine, 
that  there  cannot  be  two  municipal  corporations  for  the  same  purposes, 
with  co-extensive  powers  of  government,  at  the  same  time,  over  the 
same  territory.  Grant.  Corp.  18;  Dill.  3Iim.  Corp.  {2d  ed.)  §  184; 
Paterson  v.  Society.,  4  Zah.  385  ;  King  v.  Fassmore,  3  T.  R.  343. 

Now,  among  the  subjects  which  have  been  confided  to  the  borough/  ],MU-i  'n/sj* 
government  under  supplements  to  the  general  act,  is  that  of  control!    *Ca>'^- 
over  sewers.     P.  L.  of  1893,  pyp.  271,  460;  P.  L.  of  1892,  j9/:).  96,      '^*^^-^ 
897. 

The  effect  of  investing  boroughs  with  this  control  is  to  exclude  the  \QJi^  '^'"*^ 
control  of  any  other  municipal  corporation  within  the  limits  of  the  1 
borough. 

It  is,  therefore,  apparent  that  the  discussion  with  respect  to  the 
constitutionality  of  the  act  of  1895,  which  act  purported  to  sever 
the  territory  of  the  boroughs  organized  under  the  act  of  1878  from 
the  territor}'  of  the  township,  is  unimportant,  for,  unless  all  the  sup- 
plements which  have  conferred  powers  upon  the  boroughs  are  uncon- 
stitutional, the  act  conferring  control  over  sewers  must  be  regarded 
as  valid,  and  it,  without  further  legislation,  excludes  the  township 
from  exercising  anj'  control,  in  respect  to  this  branch  of  municipal 
government,  within  the  limits  of  the  borough. 


.\» 


36  CITY   OF   INDIANAPOLIS  V.   CENTER   TOWNSHIP. 

I  therefore  regard  the  two  mnnicipalities,  in  respect  to  the  matter 
now  under  consideration,  as  entirely  distinct.  This  view  strips  thft 
complainants,  as  alread3'  remarked,  of  the  right  to  relief  under  this 

'v^""'     •      •      •      •      ^:^^    ' 


sc 


V  ~. 


./^/pAn-^V) 


BOARD    OF    SCHOOL   COMMISSIONERS   OF   THE    CITY  OF 
^      INDIANAPOLIS   -v.   CENTER  TOWNSHIP  AND   CENTER  M 
>      y       SCHOOL  TOWNSHIP,    i'^^^-^  I 

aV  \^v^  ^^^^"     ^'^^  Indiana,  391.1 

>y\  Suit  to  recover  possession  and  quiet  the  title  in  plaintiff  of  several 

parcels  of  real  estate,  and  to  compel  the  trustee  of  the  township  to 

^,.  ^        convey  the  same  to  plaintiff.     The  parcels  in  question  were  tracts  upon 

J>  ;      which  school-houses  had   been   erected   for  the  use  of  the  schools  of 
_^avv  Center    township ;  and  whic^  afterwards,  by  an  ordinance  of  annex- 

ation, had  become  embraced  within  the  limits  of  the  cit}'. 
'.  '  •        a-^         Center  School  township  claimed  that,  because  said  township  was  in 
v'vw^'r^''*^        debt  for  a  part  of  the  cost  of  such  land  and  school-houses,  the  plaintiffs 
v-*^  "^      ought  to  pay  a  part  of  that  indebtedness  proportioned  to  the  amount  of 
\ie^-^  taxable  property  withdrawn  from  the  school  township  b}'  the  annexation. 

The  decree,  in  substance,  was  that  tiie  trustee  of  the  school  township 
should  convey  the  real  estate  to  plaintiff,  upon  the  payment  by  plain- 
tiff to  him  of  $4,821.48  ;  and  that  plaintiff  pay  to  the  school  townsiiip 
the  said  sum  of  S4,82L48.  Plaintiff  appealed. 

C.  A.  Dryer ^  for  appellant. 
Ayres  <&  J^ones,  for  appellees. 

McCabe,  J.  .  .  .  The  demurrer  to  the  different  paragraphs  of  the 
cross-complaint,  therefore,  presents  the  question  whether  the  annexation 
of  territory  to  a  city,  which  territory  contains  a  school-house  and  lot  be- 
longing to  the  school  township  from  which  the  territory  is  taken,  affords 
a  cause  of  action  in  favor  of  swch  school  township  against  the  school 
corporation  of  such  city,  either  for  the  value  of  such  property,  or  for  a 
part  of  any  unpaid  indebtedness  of  such  school  township,  incurred  in 
either  the  purchase  of  the  lot  or  the  erection  of  the  house. 

If  there  can  be  a  recovery  by  the  school  township  for  an}'  part  of  the 
unpaid  indebtedness  on  account  of  the  cost  of  such  school  building  in 
the  absence  of  statutory  authorit}',  then  no  reason  is  perceived  why 
there  could  not  be  a  recover}'  against  the  city  school  corporation  for 
the  full  value  of  the  property  regardless  of  any  indebtedness. 

The  question  is  not  a  new  one  in  this  court,  though  there  is  not  per- 
fect harmony  in  its  decisions  thereon. 

The  whole  argument  of  the  learned  counsel  for  appellees  in  support 
1  Statement  abridged.     Part  of  opinion  omitted.  —  Ed. 


CITY   OF   INDIANAPOLIS   V.    CENTER   TOWNSHIP.  37 

of  the  ruling  upholding  the  cross-eomplaint  is  based  on  the  idea  that  it 
would  be  highl}-  inequitable  to  allow  the  city  school  corporation  to  get 
the  benefit  of  the  taxes  collected  and  to  be  collected,  to  defra\"  the 
expense  of  purchasing  the  lots,  and  building  the  school-houses  without 
contribution,  and  that  the  courts  have  power  to  adjust  such  equities  by 
decreeing  contribution  against  the  city  school  corporation.  But  the  diffl-  •>  ^^ 
culty  in  the  way  of  that  argument  is  that  contribution  may  result  in 
forcing  the  taxpayers  residing  in  the  annexed  territory  to  pay  twice,  or 
to  pay  their  proportion  of  the  tax  a  second  time. 

•  ■••••  •• 

Here  the  Legislature  has  made  provision  that  the  title  to  school  prop- 
erty embraced  in  annexed  territory  shall  vest  in  and  be  conveyed  to  the 
school  corporation  of  the  annexing  city,  without  making  anj-  provision 
for  payment  of  any  part  of  the  value  of  such  school-houses  or  anj-  part 
of  any  indebtedness  of  the  school  township  created  on  account  thereof 
and  remaining  unpaid. 

But  it  is  insisted  that  in  so  far  as  the  statute  is  retrospective  it  is 
void   as   to  vested   rights.     The   act   is   expressly  retrospective,  and  ^ 
therefore  applies  to  the  annexation  involved  in  this  case.     Retrospec-   \J^\ASi-f^ 
tive  laws  may  be  passed  by  the  Legislature  when  thej-  do  not  destroy  i^j^^^j-^^ 
or  interfere  with  vested  rights.     Andrews  v.  Mussell.  7  Blackf  474  ; 
ISeecTv/foale,  Admr.,  4  Ind.  283;  Pritchardx.  Spencer,  2  Ind.  486;        ,  ^ 

Flinn  V.  Parsons,  Admr.,  60  Ind.  573  ;  Johnson  v.  Board,  etc.^  107   ^"^"^  ^^y- 
Ind.  15  ;  Dowell  v.  Talbot  Paving  Co.,  138  Ind.  675.  uta5^«».^ 

The  act   did    not   interfere  with  vested    rights,  because  the  school  f\^-^' 

township  only  held  the  title  as  we  have  seen  as  trustee,  and  the  State  |.^p  , ,    r 
Ms  the  right,  as  it  did  in  this  act,  to  change  the  trustee.     Indeed,  the 
acfdoes  nothing  more  than  re-enact  what  this  court  had  already  de- 
clared the  law  to  be  in  the  cases  we  have  cited  in  this  opinion  upoai-fr-et  ^\>  *■ 

that  point.  ^'"^ff^ 

The  question  presented  by  the  cross-complaint  is  the  same  precisely  y 

as  if  the  trustee  of  Center  township  had  promptly  conveyed  the  school- 
houses  and  lots  in  question  to  the  city  school  corporation,  in  obedience 
to  the  above  mentioned  act,  and  then  sued  the  city  school  corporation 
for  contribution  as  he  has  in  the  cross-complaint.  The  problem  would 
be,  as  it  now  is,  solved  by  recurring  to  the  elementary  principle  that 
nojierson  or  corporation  can  be  made  liable  to  pay  monej'  outside  of  a  \  ^' 
tort,  without  a  contract,  express  or  implied,  to  that  effect,  unless  such 
liabilit\'  is  created  by  positive  law  or  legislative  enactment.  13  Am. 
and  Eng.  Ency.  of  Law,  287,  and  authorities  there  cited. 

There  is  no  room  for,  and  there  is  no  contention  tliat  the  facts  estab- 
lish such  a  contract,  either  express  or  implied,  on  the  part  of  the  city 
school  corporation.  Such  city  school  corporation  had  nothing  to  do. 
and  could  have  nothing  to  do,  in  bringing  the  annexed  territory  into  '" 

tlie  city,  even  if  that  would  create  an  implied  obligation  to  contribute.  -^' 

Moreover,  its  objections  and  protest  against  the  annexation,  if  it  had 
any,   would  have  been  impotent  and  powerless  to  prevent  the  same. 


38  PEOPLE   EX    REL.    SCHEUBER   V.  NIBBE. 

R.  S.  1894,  sections  3808-3809.     Acts  1891,  p.  137,  sections  37-38. 

Therefore,  if  the   city  school  corporation  in  this  case  is  to  be  made 

liatle  to  contribute,  that   liability  must  be  created  bj-  the   decree  of 

A    \'il^^^  court,  as  was  attempted  to  be  done  in  this  case.     The  creation  of 

'<''V^      (    such   liability  being   the   exercise  of  a  legislative    function  or  power 

o-:Xjc    "^v  which   the   constitution    forbids  the  courts    to   exercise,  the   superior 

Jk.'xlJt^ '  court  erred  in  attempting  to  do  so.     Section  1,  article  3,  Const.,  R.  S. 

1894,  section  96.     It  follows  from  what  we  have  said  tiiat  the  special 

term  erred  in  overruling  the  demurrer  to  the  several  paragraphs  of  the 

cross-complaint,  and  consequently  the  general  term  erred  in  affirming 

that  part  of  the  judgment  resting  on  the  cross-complaint,  namely,  the 

judgment  against  the  appellant  for  $4,821.48. 

'y^     That  part  of  the  judgment  is  reversed,  and  the  judgment  in  favor  of 

••m        \  the  appellant,  the  cit}'  school  corporation,  for  the  conve3-ance  to  it  of 

^^X         1  the  school-houses  and  lots  is  affirmed,  freed  from  the  condition  to  pay 

^  ,     I  said  sum. 

t^r^.  *.  The  cause  is  remanded,  with  instructions  to  sustain  the  demurrer  to 
'  v*^^      the  several  paragraphs  of  the  so-called  answer,  but  which  is  a  cross-- 

complaint  or  counterclaim.  -±r^<\ru^  ~ 


kjvJ^ 


o^  C^M 


■*ir^ 


PEOPLE   EX   REL.   SCHEUBER  v.   NIBBE 


co-Vi(vc?'v<*-^^ 


1894.     150  7//.  269.  .g:^^.W- 

Bailey,  J.  This  was  a  proceeding  by  quo  loarranto^  brought  to  test 
the  validity  of  the  organization  of  Drainage  District  No.  one,  in  the 
township  of  Niles,  Cook  county,  claimed  to  have  been  organized  under 
the  provisions  of  the  Farm  Drainage  Act.  It  seems  to  be  conceded 
that,  in  the  organization  of  the  district,  all  the  statutory  requirements 
■were  complied  with,  the  only  objection  to  its  validity  being,  that  the 
district  includes  a  portion  of  the  territory  of  the  village  of  Niles 
Center,  a  municipal  corporation  organized  under  the  general  law  ia 
relation  to  the  incorporation  of  cities  and  villages. 

It  appears  that  the  district  embraces  a  long,  narrow  and  somewhat 
irregularly  shaped  territory,  and  that  at  about  the  middle  of  the  dis- 
trict, a  portion  of  the  territory  of  the  village  is  includcvl,  extending 
entirely  across  the  district.  It  will  thus  be  seen  that,  if  the  portion 
of  the  village  included  in  the  district  were  omitted  therefrom,  the 
district  would  be  divided  into  two  separate  portions,  having  no  con- 
nection with  each  other,  and  it  may  perhaps  be  admitted  that  if  the 
village  territory  was  improperly  and  illegally  included,  the  organiza- 
tion of  the  district  must  be  held  to  be  invalid. 

But  we  are  unable  to  see  upon  what  ground  it  can  be  held  that  the 
inclusion  in  a  drainage  district  organized  under  the  Farm  Drainage 
Law  of  a  portion  of  the  territor}'  of  a  village  already  organized  under 
the  general  law  in  relation  to  cities  and  villages  is^Jmprojjer.or  uii- 


^. 


PEOPLE    EX   KEL.    SCIIEUBER   V.   NIBBE. 


lawful.     It  cannot  be  doubted  that  the  Legislature  has  the  power  to 
authorize  the  organization  of  municipal  corporations  for  one  purpose, 
embracing  territo'ry  situated  wholly  or  partly  within  the  bouncraries  of. 
another  municipaf  corporation  already  organized  for  another  purpose. 

This  question  Vas  fully  considered  in  Wilson  v.  Board  of  Trustees, 
133  111.  44:3.  That  case  involved  the  question  of  the  constitutionality 
of  the  act  entitled,  "  Au  Act  to  create  sanitary  districts,  and  to  re- 
move obstructions  in  the  Des  Plaines  and  Illinois  rivers,"  approved 
May  29,  1889,  the  first  section  of  which  provided  that,  "  whenever  any 
area  of  contiguous  territory  within  the  limits  of  a  single  county  shall 
contain  two  or  more  incorporated  cities,  towns  or  villages,  and  shall 
be  so  situated  that  the  maintenance  of  a  common  outlet  for  the  drain 
age  thereof  will  conduce  to  the  preservation  of  the  public  health,  the 
same  may  be  incorporated  as  a  sanitary  district."  One  of  the  ques- 
tions raised  was,  whether  it  was  within  the  power  of  the  General 
Assembly,  under  the  Constitution,  to  authorize  the  formation  of 
sanitary  districts,  disregarding  the  existence  and  boundaries  of  pre- 
existing municipal  corporations,  and  invest  the  corporate  authorities 
with  the  power  of  taxation  for  sanitary  purposes.  In  considering  t-hat 
question,  we  held,  that  while  the  General  Assembly  may  vest  in  cities, 
towns  and  villages,  the  power  to  construct  sewers,  drains,  etc.,  for 
sanitary  purposes,  it  may  also  create  a  corporation  within  the  county,  \  v 
and  invest  it  with  like  power,  and  so,  may  create  a  corporation  includ- 
ing both  city  and  county,  and  invest  it  with  power  to  secure  the  public 
health  by  means  of  sewers,  channels  and  drains ;  that  there  are  no 
constitutional  restrictions  as  to  the  boundary  lines  of  public  or  muni- 
cipal corporations  within  which  new  corporations  may  be  formed,  ex- 
cept as  to  counties,  and  that  it  is  wholly  unnecessary  that  the  corporate 
authorities  of  the  new  corporation  should  be  also  the  corporate  authori- 
ties of  some  specific  pre-existing  corporation  ;  that  it  therefore  violates 
no  principal  of  constitutional  law  to  create  a  district,  and  vest  it  with 
powders  of  taxation  for  sanitary  purposes,  co-extensive  with  the  terri- 
tory to  be  controlled,  and  that  the  propriety  of  the  creation  of  such 
municipal  corporation  belongs  alone  to  the  General  Assembly  and  not 
to  the  courts. 

Precisely  the  same  doctrine  must  be  held  to  apply  to  the  statute 
under  which  the  drainage  district  now  before  us  was  organized.  That 
was  an  act  "  to  provide  for  drainage  for  agricultural  and  sanitary 
purposes,"  etc.,  and,  upon  the  same  principles  laid  down  in  the  case 
above  cited,  the  General  Assembly  had  power,  under  the  constitution, 
to  provide  for  the  organization  of  drainage  disti'icts,  embracing  such 
territory  as  in  the  exercise  of  its  legislative  discretion  it  thought 
proper,  wholly  irrespective  of  whether  the  territory  to  be  thus  organ- 
ized into  a  drainage  district,  or  any  part  of  it,  was  already  embraced 
within  the  boundaries  of  a  pre-existing  municipal  corporation. 

We  are  also  of  the  opinion  that  the  provisions  of  the  Farm  Drainage 
Act  cannot  be  so  interpreted  as  to  exclude  from  a  drainage  district  to 


tts>^ 


1 


2^ 


^r'^ 


40  HUNTER   V.   PlTTSBUllGH. 

be  organized  under  them,  the  territory  already  embraced  within  the 
limits  of  an  incorporated  village.  Section  eleven  of  the  act  and  sub- 
sequent sections  which  provide  for  the  formation  of  districts  for  com- 
bined drainage  out  of  territory  lying  within  a  single  town,  merely 
provides  that  the  territory  to  be  embraced  within  the  proposed  district 
shall  lie  within  one  town.  3  Starr  &,  Cur.  Stat.  443,  et  seq.  The  pro- 
visions of  these  sections  are  sufficiently  broad  to  embrace  any  and  all 
contiguous  territory  within  a  town  which  is  so  circumstanced  as  to  re- 
quire a  combined  system  of  drainage  for  agricultural  or  sanitary  pur- 
poses wholly  irrespective  of  whether  any  portion  of  it  is  already 
included  within  the  boundaries  of  a  pre-existing  municipal  corporation 
or  not.  And  we  know  of  no  other  provision  of  the  statute,  and  are 
referred  to  none,  by  which  any  further  limitation  in  this  respect  is 
imposed. 

By  the  judgment  of  the  Circuit  Court,  the  petition  for  a  writ  of  quo 
warranto  was  dismissed,  and  we  are  of  the  opinion  that,  upon  the  facts 
appearing  in  the  record  that  judgment  was  proper,  and  it  will  therefore 
be  affirmed. 

Judgment  affirmed. 


^T) 


HUNTER  V.   PITTSBURGH.  ^vs^jOvv^v/tfti'  <^ 

1907.    207  U.  S.  161.  In^^^Lfe^'T^ 

Moody  J.*     The  plaintiffs  in  error  seek  a  reversal  of  the  judgment    i^Vi*, 
of  the  Supreme  Court  of  Pennsylvania,  which  affirmed  a  decree  of  ^(Xkhj 
lower  court,  directing  the  consolidation  of  the  cities  of  Pittsburgh  and  ,•       C 
Allegheny.     This  decree  was  entered  by  authority  of  an  act  of  the  ^^^^ih^ 
General  Assembly  of  that  State,  after  proceedings  taken  in  conformity  ff\QpJC 
with  its  requirements.     The  act  authorized  the  consolidation  of  two ^^g^-l^ 
cities,  situated  with  reference  to  each  other  as  Pittsburgh  and  Alle-^^ 
gheny  are,  if  upon  an  election  the  majority  of  the  votes  cast  in  thej,,^,,;^^ 
territory  comprised  within  the  limits  of  both  cities  favor  the  consoli-^i^^j 
dation,~even  though,  as  happened  in  this  instance,  a  majority  of  the  -vilH* 
votes  cast  in  one  of  the  cities  oppose  it.     I'he  procedure  prescribed  by    A^ 
the  act  is  that  after  a  petition  filed  b}'  one  of  the  cities  in  the  Court  otii^.^^^ 
Quarter  Sessions,  and  a  hearing  upon  that  petition,  that  court,  if  the     , 
petition  and  proceedings  are  found  to  be  regular  and  in  conformity      '' 
with  the  act,  shall  order  an  election.     If  the  election  shows  a  majority 
of  the  votes  cast  to  be  in  favor  of  the  consolidation,  the  court  "  shall  /K^t^^ 
enter  a  decree  annexing  and  consolidating  the  lesser  city  .  .  .  with 
the  greater  city."     The  act  provides,  in  considerable  detail,  for  the     • 
effect  of  the  consolidation  upon  the  debts,   obligations,   claims   and 
property  of  the  constituent  cities;  grants  rights  of  citizenship  to  the 
citizens  of  those  cities  in  the  consolidated  city  ;  enacts  that  "  except 

1  Statement  and  arguments  omitted.  —  Ed. 
'\^^^«~■i^  AjJJL  r^  p  O-t^----^  <*-■   .     •-'^•^'■^^^  l>tr*>-J<    .0-\^^^<^Tk^^ 


HUNTER   V.  PITTSBURGH.  41 

as  herein  otherwise  provided,  all  the  property  .  .  .  and  rights  and  ^^^^i, 
privileges  .  .  .  vested  in  or  belonging  to  either  of  said  cities  .  .  .  rT^. 
prior  to  or  at  the  time  of  the  annexation,  shall  be  vested  in  and 
owned  by  the  consolidated  or  united  city,"  and  establishes  the  form  of 
government  of  the  new  city.  This  procedure  was  followed  by  the 
tiling  of  a  petition  by  the  City  of  Pittsburgh  ;  by  an  election  in  which 
the  majority  of  all  the  votes  cast  were  in  the  affirmative,  although  the 
majority  of  all  the  votes  cast  by  the  voters  of  Allegheny  were  in  the 
negative,  and  by  a  decree  of  the  court  uniting  the  two  cities. 

Prior  to  the  hearing  upon  the  petition  the  plaintiffs  in  error,  who 
were  citizens,  voters,  owners  of  property  and  tax-payers  in  Allegheny,  1  -^  C"Vi.£ 
filed  twent3^-two  exceptions  to  the  petition.     These  exceptions  were   _,-.-;      jT 
disposed  of  adversely  to  the  exceptants  by  the  Court  of  Quarter  Ses-  \\iL 
sions,  and  the  action  of  that  court  was  successively  affirmed  by  the      IJU-*-*' 
Superior  and  Supreme  courts  of  the  State.     The  case  is  here  upon  writ       T^>-a-^/ 
of  error,  and  the  assignment  of  errors  alleges  that  eight  errors  were 
committed  by  the  Supreme  Court  of  the  State.     This  assignment  of 
errors  is  founded  upon  the  dispositions  by  the  state  courts  of  the 
questions  duly  raised  by  the  filing  of  the  exceptions  under  the  provis- 
ions of  the  Act  of  the  Assembly. 

The   defendants  in  error  moved  to  dismiss  the  case   because  no  ^ 
Federal  question  was  raised  in  the  court  below  or  by  the  assignments  -^-^^^^-'^ 
of  error,  or,  if  any  Federal  question  was  raised,  because  it  was  frivol- 
ous.    This  motion  must  be  overruled.     The  plaintiffs  in  error  claimed 
that  the  Act  of  Assembly  was  in  violation  of  tlie  Constitution  of  the    c^^  VA 
United  States,   and  specially  set  up  and  claimed  in  the  court  below 
rights  under  several  sections  of  that  Constitution,  and  all  their  claims 
were  denied  by  that  court.     These  rights  were  claimed  in  the  clearest 
possible  words,  and  the  sections  of  the  Constitution  relied  upon  were 
specifically  named.     The  questions  raised  by  the  denial  of  these  claims  .  ^:^«-Urv< 
are  not  so  unsubstantial  and  devoid  of  all  color  of  merit  that  we  are  I  ck*-**"'^ 
warranted  in  dismissing  the  case  without  consideration  of  their  merits.         . .,  ^V'-^- 

Some  part  of  the  assignments  of  error  and  of  the  arguments  in 
support  of  them  may  be  quickly  disposed  of  by  the  application  of 
well-settled  principles.  We  have  nothing  to  do  with  the  policy,  wisdom, 
justice  or  fairness  of  the  act  under  consideration;  those  questions  are 
for  the  consideration  of  those  to  whom  the  State  has  entrusted  its  ___ 

legislative  power,  and  their  determination  of  them  is  not  subject  to  ^ 

review  or  criticism  by  this  court.     .We  have  nothing  to  do  with  the  -+- 

interpretation  of  the  constitution  of  the  State  and  the  conformity  of 
the  enactment  of  the  Assembly  to  that  constitution  ;  those  questions 
are  for  the  consideration  of  the  courts  of  the  State,  and  their  decision 
of  them  is  final.  The  Fifth  Amendment  to  the  Constitution  of  the 
United  States  is  not  restrictive  of  state,  but  only  of  national,  action. 

After  thus  eliminating  all  questions  with  which  we  have  no  lawful 
concern,  there  remain  two  questions  which  are  within  our  jurisdiction. 
There  were  two  claims  of  rights  under  the  Constitution  of  the  United 


42  HUNTER   V.   PITTSBURGH. 

States  which  were  clearly  made  in  the  court  below  and  as  clearly  denied. 
They  appear  in  the  second  and  fourth  assignments  of  error.  Briefly 
stated,  the  assertion  in  the  second  assignment  of  error  is  that  the  Act 
of  Assembly  impairs  the  obligation  of  a  contract  existing  between  the 
City  of  Allegheny  and  the  plaintiffs  in  error,  that  the  latter  are  to  be 
taxed  only  for  the  governmental  purposes  of  that  city,  and  that  the 
legislative  attempt  to  subject  them  to  the  taxes  of  the  enlarged  city 
violates  Article  I,  section  9,  paragraph  10,  of  the  Constitution  of  the 
United  States.  This  assignment  does  not  rest  upon  the  theory  that 
the  charter  of  the  city  is  a  contract  with  the  State,  a  proposition  fre- 
quently denied  by  this  and  other  courts.  It  rests  upon  the  novel 
proposition  that  there  is  a  contract  between  the  citizens  and  tax-payers 
of  a  municipal  corporo.tion  and  the  corporation  itself,  that  the  citizens 
and  tax-payers  shall  be  taxed  only  for  the  uses  of  that  corporation, 
and  shall  not  be  taxed  for  the  uses  of  any  like  corporation  with  which 
it  may  be  consolidated.  It  is  not  said  that  the  City  of  Allegheny  ex- 
pressly made  any  such  extraordinary  contract,  but  only  that  the  con- 
tract arises  out  of  the  relation  of  the  parties  to  each  other.  It  is 
difficult  to  deal  with  a  proposition  of  this  kind  except  by  saying  that 
it  is  not  true.  No  authority  or  reason  in  support  of  it  has  been 
offered  to  us,  and  it  is  utterly  inconsistent  with  the  nature  of  muni- 
cipal corporations,  the  purposes  for  which  they  are  created,  and  the 
relation  they  bear  to  those  who  dwell  and  own  property  within  their 
limits.     This  assignment  of  error  is  overruled. 

Briefly  stated,  the  assertion  in  the  fourth  assignment  of  error  is  that 
the  Act  of  Assembly  deprives  the  plaintiffs  in  error  of  their  property 
without  due  process  of  law,  by  subjecting  it  to  the  burden  of  the 
additional  taxation  which  would  result  from  the  consolidation.  The 
manner  in  which  the  right  of  due  process  of  law  has  been  violated,  as 
set  forth  in  the  first  assignment  of  error  and  insisted  upon  in  argument, 
is  that  the  method  of  voting  on  the  consolidation  prescribed  in  the  act 
has  permitted  the  voters  of  the  larger  city  to  overpower  the  voters  of 
the  smaller  city,  and  compel  the  union  without  their  consent  and 
against  their  protest.  The  precise  question  thus  presented  has  not 
been  determined  by  this  court.  It  is  important,  and,  as  we  have  said, 
not  so  devoid  of  merit  as  to  be  denied  consideration,  although  its 
solution  by  principles  long  settled  and  constantly  acted  upon  is  not 
difficult.  This  court  has  many  times  had  occasion  to  consider  and 
decide  the  nature  of  municipal  cprporations,  their  rights  and  duties, 
and  the  rights  of  their  citizens  and  creditors.  Maryland  v.  Bait.  & 
Ohio  Railroad^  3  How.  534,  550 ;  East  Hartford  v.  Hartford  Bridge 
Company,  10  How.  511,  533,  534,  536;  United  States  v.  Railroad 
Company,  17  Wall.  322,  329  ;  Laramie  County  v.  Albany  County,  92 
U.  S.  307,308,  310-312;  Commissioners  v.  Lucas,  93  U.  S.  108,  114; 
iVew  Orleans  v.  Clark,  95  U.  S.  644,  654  ;  Mount  Pleasant  v.  Beckwllh^ 
100  U.  S.  514,  524,  525,  531,  532;  Meriwether  v.  Garrett,  102  U.  S. 
472,  511 ;  Kelly  v.  Pittsburgh,  104  U.  S.  78,  80  ;  Forsyth  v.  Hammond^ 


HUNTER   V.   PITTSBURGH. 


43 


166  U.  S.  506,  518;  WilUams  v.  Eggleston,  170  U.  S.  301,  310; 
Covington  v.  Kentucky,  173  U.  S.  231,  241;  Worcester  v.  Worcester 
Street  Raihoay  Com2jany,  196  U.  S.  539,  549;  Kies  v.  Lowrey,  199 
U.  S.  233.  It  would  be  unnecessary  and  unprofitable  to  analyze  these 
decisions  or  quote  from  the  opinions  rendered.  We  think  the  following 
principles  have  been  established  by  them  and  have  become  settled 
doctrines  of  this  court,  to  be  acted  upon  wherever  they  are  applicable. 
Municipal  corporations  are  political  subdivisions  of  the  State,  createdk 
as  convenient  agencies  for  exercising  such  of  the  governmental  powersH 
of  the  State  as  may  be  entrusted  to  them.  For  the  purpose  of 
executing  these  powers  properly  and  efficiently  they  usually  are  given 
the  power  to  acquire,  hold,  and  manage  personal  and  real  property. 
The  number,  nature  and  duration  of  the  powers  conferred  upon  these 
corporations  and  the  territory  over  which  they  shall  be  exercised  rests 
in  the  absolute  discretion  of  the  State.  Neither  their  charters,  nor 
any  law  conferring  governmental  powers,  or  vesting  in  them  property 
to  be  used  for  governmental  purposes,  or  authorizing  them  to  hold  or 
manage  such  pro[)crty,  or  exempting  them  from  taxation  upon  it, 
constitutes  a  contract  with  the  State  within  the  meaning  of  the  Federal 
Constitution.  The  State,  therefore,  at  its  pleasure  may  modify  or 
withdraw  all  such  powers,  may  take  without  compensation  such  prop- 
erty, hold  it  itself,  or  vest  it  in  other  agencies,  expand  or  contract  the 
territorial  area,  unite  the  whole  or  a  part  of  it  with  another  munici- 
pality, repeal  the  charter  and  destroy  the  corporation.  All  this  may 
be  done,  conditionally  or  unconditionally,  with  or  without  the  consent 
of  the  citizens,  or  even  against  their  protest.  In  aU  these  respects  the 
State  is  supreme,  and  its  legislative  body,  conforming  its  action  to  the 
state  constitution,  may  do  as  it  will,  unrestrained  by  any  provision  of 
the  Constitution  of  the  United  States.  Although  the  inhabitants  and 
property  owners  may  by  such  changes  suffer  inconvenience,  and  their 
property  may  be  lessened  in  value  by  the  burden  of  increased  taxation, 
or  for  any  other  reason,  they  have  no  right  by  contract  or  otherwise  in 
the  unaltered  or  continued  existence  of  the  corporation  or  its  powers, 
and  there  is  nothing  in  the  Federal  Constitution  which  protects  them 
from  these  injurious  consequences.  T]ie_power Js jn  the  State  and 
those  who  legislate  for  the  State  are  alone  responsible  for  any  unjust^ 
or  oppressive  exercise  of  it. 

Applying  these  principles  to  the  case  at  bar,  it  follows  irresistibly 
that  this  assignment  of  error,  so  far  as  it  relates  to  the  citizens  who 
are  plaintiffs  in  error,  must  be  overruled. 

It  will  be  observed  that  in  describing  the  absolute  power   of   thei^oX/L^ic^^;^ 
State  over  the  property  of  municipal  corporations  we  have  not  extended<^^^^«— x  u.    ' 


it  beyond  the  property  held  and  used  for  governmental  purposes. 
Such  corporations  are  sometimes  authorized  to  hold  and  do  hold 
property  for  the  same  purposes  that  property  is  held  by  private 
corporations  or  individuals.  The  distinction  between  property  owned 
by  municipal  corporations  in  their  public  and  governmental  capacity  and 


r^k 


,u^2. 


44  HUNTER  V.   PITTSBURGH. 

# 

that  owned  by  them  in  their  private  capacity,  though  difficult  to  define, 
has  been  approved  by  many  of  the  state  courts  (1  Dillon,  Municipal 
Corporations,  4th  ed. ,  sections  66  to  66a,  inclusive,  and  cases  cited  in 
note  to  48  L.  R.  A.  465),  and  it  has  been  held  that  as  to  the  latter  class 
of  property  the  Legislature  is  not  omnipotent.  If  the  distinction  is 
recognized  it  suggests  the  question  whether  property  of  a  municipal ' 
corporation  owned  in  its  private  and  proprietary  capacity  may  be  taken 
from  it  against  its  will  and  without  compensation.  Mr.  Dillon  says 
truly  that  the  question  has  never  arisen  directly  for  adjudication  in 
this  court.  But  it  and  the  distinction  upon  which  it  is  based  has 
several  times  been  noticed.  Commissioners  v.  liucas^  93  U.  S.  108, 
115  ;  Meriwether  v.  Garrett,  102  U.  S.  472,  518,  530;  Essex  Boards. 
STcinMe,  140  U.  S.  334,  342;  Neio  Orleans  v.  Water  Works  Co.,  142 
U.  S.  79,  91 ;  Covington  v.  Kentucky,  173  U.  S.  231,  240;  Worcester 
v.  Street  Railway  Co.,  196  U.  S.  539,  551  ;  Monterey  v.  Jacks,  203  U.  S. 
360.  Counsel  for  plaintiffs  in  error  assert  that  the  City  of  Allegheny 
was  the  owner  of  property  held  in  its  private  and  proprietary  capacity, 
and  insist  that  the  effect  of  the  proceedings  under  this  act  was  to  take 
its  property  without  compensation  and  vest  it  in  another  corporation, 
and  that  thereby  the  city  was  deprived  of  its  property  without  due 
process  of  law  in  violation  of  the  Fourteenth  Amendment.  But  no  such 
question  is  presented  by  the  record,  and  there  is  but  a  vague  suggestion 
of  facts  upon  which  it  might  have  been  founded.  In  the  sixth 
exception  there  is  a  recital  of  facts  with  a  purpose  of  showing  how  the 
Ji  taxes  of  the  citizens  of  Allegheny  would  be  increased  by  annexation 
l^  «  to  Pittsburgh.  In  that  connection  it  is  alleged  that  while  Pittsburgh 
intends  to  spend  large  sums  of  money  in  the  purchase  of  the  water 
plant  of  a  private  company  and  for  the  construction  of  an  electric 
light  plant,  Allegheny  "has  improved  its  streets,  established  its  own 
system  of  electric  lighting,  and  established  a  satisfactory  water 
ju-  supply."  This  is  the  only  reference  in  the  record  to  the  property 
■ "  '^'^^  I  rights  of  Allegheny,  and  it  falls  far  short  of  a  statement  that  that  city 
s/^*i-KKh^  ^  ■'  holds  any  property  in  its  private  and  proprietary  capacity.  Nor  was 
P  there  any  allegation  that  Allegheny  had  been  deprived  of  its  property 

without  due  process  of  law.  The  only  allegation  of  this  kind  is  that 
the  tax-payers,  plaintiffs  in  error,  were  deprived  of  their  property 
without  due  process  of  law  because  of  the  increased  taxation  which 
would  result  from  the  annexation  —  an  entirely  different  proposition. 
f^^  Nor  is  the  situation  varied  by  the  fact  that,  in  the  Superior  Court, 

^viA^^-^j  Allegheny   was    "permitted   to   intervene    and    become   one   of    the 
^  "  appellants."      The  city  made  no  new  allegations  and  raised  no  new 

questions,  but  was  content  to  rest  upon  the  record  as  it  was  made  up. 
Moreover,  no  question  of  the  effect  of  the  act  upon  private  property 
rights  of  the  City  of  Allegheny  was  considered  in  the  opinions  in  the 
state  courts  or  suggested  by  assignment  of  errors  in  this  court.  The 
question  is  entirely  outside  of  the  record  and  has  no  connection  with 


MOUNT   PLEASANT   V.   BECKWITH. 


45 


any  question  which  is  raised  in  the  record, 
without  jurisdiction  to  consider  it,  Dewey 
193;    Harding  v.  Illinois,  196   U.  S.  78, 
intimate  any  opinion  upon  it. 
The  judgment  is 


Nr^SV--. 


For  these  reasons  we  are 
V.  Des  Moines,  173  U.  S. 
and   neither   express    nor 


A^rmed. 


V^k'   :yy-^     MOUNT  PLEASANT  v.  BECKWITH. 

1879.     100  U.  S.  514.1 

Appeal  from  U.  S.  Circuit  Court  for  Eastern  District  of  Wisconsin. 
Rill  in  eqult^bv  Beckwith  against  the  town  of  Mount  Pleasant,  the 
^j"-  town  of  Caledonia,  and  the  city  of  Ra(jjie..Jo  enforce  the  payment  of 


^    certain  bonds. 

In  1853  the  town_o_f  Racine  and  each  of  the  three  above-named  munic- 
ipalities were  distinct  municipal  corporations  established  by  law.  The 
bunds  in  suit  were  issued  b}'  the  town  of  Racine,  under  authority  of  the 
legislature.  In  1859  the  name  oTTtle  town  of  Racine  was  changed  to 
Orwell.  In  1860  the  legislature  passed  an  act  vacating  and  extin- 
guishing the  town  of  Orwell  (formerly'  the  town  of  Racine),  and  en- 
acting that  thereafter  it  should  have  no  existence  as  a  body  politic  and 
corporate.  This  act  of  1860  annexes  part  of  the  territor}'  of  Orwell  to 
Caledonia,  and  the  remainder  to  Mount  Pleasant ;  but  contains  no  pro- 
vision relative  to  the  payment  of  the  existing  indebtedness  of  Orwell 
In  1871  an  act  was  passed  taking  from  Mount  Pleasant  a  portion  of  the 
territory  which  had  been  thus  annexed  to  it  in  1860,  and  adding  such 
territory  to  the  city  of  Racine.  This  act  of  1871  provides  that  the  city  of 
Racine  "  shall  assume  and  pay  so  much  of  the  indebtedness  of  the  town 
of  Racine  as  the  lands  described  in  the  first  section  of  the  act  may  be 
or  become  legally  chargeable  with  and  liable  to  pay." 

The  court,  upon  the  aforesaid  facts  and  upon  the  report  of  a  master 
stating  the  respective  proportions  and  valuations  of  the  taxable  prop- 
erty received  by  each  of  the  defendant  municipalities  from  the  town  of 
Orwell,  made  a  decree  that  the  defendants  should  severally  pay  certain 
proportions  of  the  debt  due  Beckwith.  The  decree  was  based  on  the 
theory  that  an  equitable  liability  for  the  indebtedness  of  the  town  of 
Racine,  alias  Orwell,  accrued  against  the  defendant  municipalities,  to 
which  such  territory  was  distributed,  in  the  proportion  which  the  tax- 
able property  received  by  each  and  the  valuation  thereof  bore  to  the 
whole  taxable  property  and  the  whole  debt  of  such  vacated  town. 


d 


^  Statement  abridged.    Argument  and  part  of  opinion  omitted.  —  Ep. 


i.,^-  <;v 


f   f:i^ — r 


""^t    I  '^-uvw- 


^> 


»    r  .^  • 


U     V-^iA«'lN.<J      Ct-^    fr-t^.-«J-^W     S 


46 


MOUNT    PLEASANT    V.    BECKWITH. 


/;.•« 


^<y^'^ 


•I  V 


From  this  decree  the  town  of  Mount  Pleasant  and  the  town  of  Cale- 
donia appealed. 

L.  S.  Dixon  and  John  T.  Fish,  for  appellants. 

Wm.  P.  Lynde,  contra. 

Clifford,  J.  [After  recapitulating  the  facts,  and  stating  the  power 
of  the  legislature  over  municipal  corporations,  and  noting  the  fact  that 
the  citj-  of  Racine  did  not  appeal  from  the  decree  below.]  .  .  .  The  only 
question  open  in  the  case  for  examination  is  whether  the  other  two  re- 
spondent municipal  corpoi-ations  are  liable  to  any  extent  for  the  debts 
of  the  extinguished  municipalitj-,  portions  of  whose  territor}- were  trans- 
ferred by  the  legislature  into  their  respective  jurisdictions.  We  say, 
liable  to  any  extent,  because  the  question  of  amount  was  submitted  to 
the  master,  and  the  record  shows  that  neither  of  the  appellants  excepted 
to  the  master's  report.  Gordon  v.  Lewis,  2  Sum.  143  ;  McMichen  v. 
Perin.  18  How.  507.  Nor  do  either  of  the  assiijnments  of  error  allege 
that  the  master  committed  any  error  in  that  regard.  Brockett  v. 
BrocJcett,  3  id.  691. 

Viewed  in  that  light,  as  the  case  should  be,  it  is  clear  that  if  the  ap- 
pellants are  liable  at  all  they  are  liable  for  the  respective  amounts 
specified  in  the  decree.  Harding  v.  Handy.,  11  Wheat.  103;  Story 
V.  Livingston.,  13  Pet.  359. 

Where  one  town  is  by  a  legislative  act  merged  in  two  others,  it  would 
doubtless  be  competent  fortlie  legislature  to  regulate  the  rights,  duties, 
and  obligations  of  the  two  towns  wliose  limits  are  thus  enlarged;  but  if 
that  is  not  done,  that  it  must  follow  that  the  two  towns  succeed  to  all 
the  public  property  and  immunities  of  the  extinguished  municipalit}'. 
Morgan  v.  Beloit,  City  and  Town,  7  Wall.  613,  617. 

It  is  not  the  case  where  the  legislature  creates  a  new  town  out  of  a 
part  of  the  territory-  of  an  old  one,  without  making  provision  for  the 
pa^'mentof  the  debts  antecedently  contracted,  as  in  that  case  it  is  settled 
law  that  the  old  corporation  retains  all  the  public  property  not  included 
within  the  limits  of  the  new  municipality,  and  is  liable  for  ail  the  debts 
contracted  by  her  before  the  act  of  separation  was  passed.  Town 
of  Bepere  a?id  Others  v.  Town  of  Bellevue  and  Others,  31  Wis. 
120,  125. 

Instead  of  that,  it  is  the  case  where  the  charter  of  one  corporation 
is  vacated  and  rendered  null,  the  whole  of  its  territorv  being  annexed 
to  two  others.  In  such  a  case,  if  no  legislative  arrangements  are  made, 
the  effect  of  the  annulment  and  annexation  will  be  that  the  two  enlaiged 
corporations  will  be  entitled  to  all  the  public  property  and  immunities 
of  the  one  that  ceases  to  exist,  and  that  the}'  will  become  liable  for  all 
the  legal  debts  contracted  by  her  prior  to  the  time  when  the  annexation 
is  carried  into  operation. 

Speaking  to  the  same  point,  the  Supreme  Court  of  Missouri  held  that 
where  one  corporation  goes  entirely  out  of  existence  by  being  annexed 
to  or  merged  in  another,  if  no  arrangements  are  made  respecting  the 
property  and  liabilities  of  the  corporation  that  ceases  to  exist,  the  sub- 


g    PO-^-v^ 


t/c^^W^ 


MOUNT   PLEASANT   V.    BECKWITH. 


Bistlng  corporation  will  be  entitled  to  all  the  property  and  he  answer 
s'lle  for  all  the  liabilities.      Thompson  v.  Abbott,  61  Mo.  17(5,  177. 

Grant  tliat,  and  it  follows  that  when  the  eorporation  first  named 
ceases  to  exist  there  is  then  no  power  left  to  control  in  its  behalf  any 
of  its  funds,  or  to  pay  off  any  of  its  indebtedness.  Its  property  passes 
into  the  hands  of  its  successor,  and  when  the  benefits  are  taken  the 
burdens  are  assumed,  the  rule  being  that  the  successor  who  takes  the 
benefits  must  take  the  same  ctwi  oxere,  and  that  the  successor  town  is 
thereby'  estopped-to  den}'  that  she  is  liable  to  respond  for  the  attendant 
burdens.  Sioain  v.  Seamens^  9  "Wall.  254,  274  ;  Pickard  v.  Sears, 
6  Ad.  &  Ell.  474. 

Powers  of  a  defined  character  are  usually  granted  to  a  municipal  cor- 
poration, but  that  does  not  prevent  the  legi!?lature  from  exercising  un- 
limited control  over  their  charters.  It  still  has  authority  to  amend  their 
charters,  enlarge  or  diminish  their  powers,  extend  or  limit  their  boun- 
daries, consolidate  two  or  more  into  one,  overrule  their  legislative 
action  whenever  it  is  deemed  unwise,  impolitic,  or  unjust,  and  even 
abolish  them  altogether,  in  the  legislative  discretion,  and  substitute  in 
their  place  those  which  are  different.  Coolej',  Const.  Lim.  (4th  ed.) 
232. 

Municipal  corporations,  saj's  Mr.  Justice  Field,  so  far  as  they  are 
invested  with  subordinate  legislative  powers  for  local  purposes,  are 
mere  instrumentalities  of  the  State  for  the  convenient  administration  of 
their  affairs  ;  but  when  authorized  to  take  stock  in  a  railroad  compan)', 
and  issue  their  obligations  in  payment  of  the  stock,  they  are  to  that  ex- 
tent to  be  deemed  private  corporations,  and  their  obligations  are  secured 
b}-  all  the  guaranties  which  protect  the  engagements  of  private  indi- 
viduals.    Broughton  v.  Pensacola,  93  U.  S.  266,  269. 

Modifications  of  their  boundaries  maj'  be  made,  or  their  names  may 
be  changed,  or  one  ma}-  be  merged  in  another,  or  it  may  be  divided  and 
the  moieties  of  their  territorj-  may  be  annexed  to  others  ;  but  in  all  these 
cases,  if  the  extinguished  municipalit}'  owes  outstanding  debts,  it  will  be 
presumed  in  every  such  case  that  the  legislature  intended  that  the  lia- 
bilities as  well  as  the  rights  of  property  of  the  corporation  which  thereby 
ceases  to  exist  shall  accompany  the  territory'  and  property  into  the 
jurisdiction  to  which  the  territory  is  annexed.  Colchester  v.  Scaber^ 
3  Burr.  1866. 

Neither  argument  nor  authority  is  necessary  to  prove  that  a  State 
legislature  cannot  pass  a  valid  law  impairing  the  obligations  of  a  contraci, 
as  that  general  proposition  is  universally  admitted.  Contracts  undei-  tire 
Constitution  are  as  sacred  as  the  Constitution  that  protects  them  from 
infraction,  and  yet  the  defence  in  this  case,  if  sustained,  will  establish 
the  proposition  that  the  effect  of  State  legislation  may  be  such  as  to  de- 
prive a  part}'  of  all  means  of  sustaining  an  action  of  an}-  kind  for  their 
enforcement.  Cases,  doubtless,  ma}'  arise  when  the  party  cannot  col- 
lect what  is  due  under  the  contract ;  but  he  ought  always  to  be  able  by 
some  proper  action  to  reduce  his  contract  to  Judgment. 


■o-c*.^ 


'"^ 


6iA^ 


(XJc.l- 


C<l^^''(J 


t^aV^/ 


> 


lloiiW 


48 


MOUNT   PLEASANT   V.    BECKWITH. 


Suppose  it  be  admitted  that  the  act  of  the  State  legislature  annulling 
the  charter  of  the  municipalit}'  indebted  to  the  complainant,  without 
making  any  provision  for  the  pa^-ment  of  outstanding  indebtedness,  was 
unconstitutional  and  void,  still  it  must  be  admitted  that  the  very  act 
which  annulled  that  charter  annexed  all  the  territory  and  property  of  the 
municipality  to  the  two  appellant  towns,  and  that  they  acquired  with 
that  the  same  power  of  taxation  over  the  residents  and  their  estates  that 
thev  previously  possessed  over  the  estates  of  the  inhabitants  resident 
"within  their  limits  before  their  boundaries  were  enlarged. 

Extinguished  municipal  corporations  neither  own  propert}",  nor  have 
the}'  any  power  to  levy  taxes  to  pay  debts.  Whatever  power  the  ex^ 
tinguished  municipality  had  to  levy  taxes  when  the  act  passed  annulling 
her  charter  terminated,  and  from  the  moment  the  annexation  of  her 
territorj-  was  made  to  the  appellant  towns,  the  power  to  tax  the  prop- 
erty transferred,  and  the  inhabitants  residing  on  it,  became  vested  in 
the  proper  authorities  of  the  towns  to  which  the  territor}'  and  jurisdic- 
tion were  b}'  that  act  transferred  ;  from  which  it  follows  that  for  all 
practical  purposes  the  complainant  was  left  without  judicial  remed}'  to 
enforce  the  collection  of  the  bonds  or  to  recover  judgment  for  the 
amounts  the}'  represent. 

When  the  appellant  towns  accepted  the  annexation,  their  authorities 
knew,  or  ought  to  have  known,  that  the  extinguished  municipality  owed 
/lebts,  and  that  the  act  effecting  the  annexation  made  no  provision  for 
their  payment.  They  had  no  riglit  to  assume  that  the  annulment  of  the 
charter  of  the  old  town  would  have  the  effect  to  discharge  its  indebted- 
ness, or  to  impair  the  obligation  of  the  contract  held  by  its  creditors 
to  enforce  the  same  against  those  holding  the  territory  and  jurisdiction 
by  the  authorit}'  from  the  legislature  and  the  public  property  and  the 
power  of  taxation  previously'  held  and  enjoyed  by  the  extinguished 
municipality. 

Express  provision  was  made  b}'  the  act  annulling  the  charter  of  the 
debtor  municipality  for  annexing  its  territory  to  the  appellant  towns  ; 
and  when  the  annexation  became  complete,  the  power  of  taxation  pre- 
viousl}'  vested  in  the  inhabitants  of  the  annexed  territory  as  a  separate 
'municipalit}'  ceased  to  exist,  whether  to  pa}-  debts  or  for  any  other  pur- 
pose, —  the  reason  being  that  the  power,  so  far  as  respected  its  future 
exercise,  was  transferred  with  the  territory  and  the  jurisdiction  over  its 
inhabitants  to  the  appellant  towns,  as  enlarged  by  the  annexed  terri- 
tory ;  from  which  it  follows,  unless  it  beheld  that  the  extinguishment  of 
tITe  debtor  municipality  discharged  its  debts  without  payment,  which 
the  Constitution  forbids,  that  the  appellant  towns  assumed  each  a  pro- 
Iportionate  share  of  the  outstanding  obligations  of  the  debtor  town  when 
Ithey  acquired  the  territory,  public  property,  and  municipal  jurisdiction 
Vover  every  thing  belonging  to  the  extinguished  municipality. 

Corporations  of  a  municipal  character,  such  as  towns,  are  usually  or- 
ganized in  this  country  by  special  acts  or  pursuant  to  some  general  State 
law  ;  and  it  is  clear  that  their  powers  and  duties  differ  in  some  important 


MOUNT   PLEASANT   V.   BECK  WITH. 


49 


particulars  from  the  towns  which  existed  in  the  parent  country  before 
the  Revohition,  where  they  were  created  b}'  special  charters  from  the 
crown,  and  acquired  many  of  their  privileges  by  prescription,  without 
any  aid  from  Parliament.  Corporate^  franchises  of  the  kind  granted 
during  that  period  partook  much  more  largely  of  the  nature  of  private 
corporations  than  do  the  municipalities  created  in  this  country,  and 
known  as  towns,  cities,  and  counties.  Power  exists  here  in  the  legi^sla- 
ture,  not  only  to  fix  the  boundaries  of  such  a  municipality  when  incor- 
porated, but  to  enlarge  or  diminish  the  same  subsequently,  without  the 
consent  of  the  residents,  by  annexation  or  set-off,  unless  restrained  b}* 
the  Constitution,  even  against  the  remonstrance  of  ever}-  property  bolder 
and  voter  within  the  limits  of  the  original  municipalit}-. 

Property  set  off  or  annexed  may  be  benefited  or  burdened  b\-  the 
change,  and  the  liabilitj'  of  the  residents  to  taxation  ma}-  be  increased 
or  diminished  ;  but  the  question,  in  every  case,  is  entirely  within  the 
control  of  the  legislature,  and,  if  no  provision  is  made,  every  one  must 
submit  to  the  will  of  the  State,  as  expressed  through  the  legislative  de- 
partment. Inconvenience  will  be  suffered  by  some,  while  others  will  be 
greatly  benefited  in  that  regard  by  the  change.  Nor  is  it  any  objection 
to  the  exercise  of  the  power  that  the  propert}-  annexed  or  set  off  will 
be  subjected  to  increased  taxation,  or  that  the  town  from  which  it  is 
taken  or  to  which  it  is  annexed  will  be  benefited  or  prejudiced,  unless 
the  Constitution  prohibits  the  change,  since  it  is  a  matter,  in  the  ab- 
sence of  constitutional  restriction,  which  belongs  wholh-  to  the  legisla 
ture  to  determine.  Courts  everywhere  in  this  country  hold  that, 
division  of  towns,  the  legislature  ma}-  apportion  the  burdens  bet 
the  two,  and  ma}'  determine  the  proportion  to  be  borne  by  each.  Sill 
vT  The  Village  of  Corning,  15  N.  Y.  297  ;  Mayor  v.  State,  ex  rel.  of 
the  Board  of  Police  of  Baltimore,  15  Md.  376  ;  City  of  Olney  v. 
Harvey,  50  111.  453  ;  Borough  of  Dunmore's  Appeal,  52  Pa.  St.  374. 

Public  property  and  the  subordinate  rio-hts  of  a  municipal  corpora- 
tion are  within  the  control  of  the  legislature  ;  and  it  is  held  to  be  settled 
law  that,  where  two  separate  towns  are  created  out  of  one,  each,  in  the 
absence  of  any  statutory  regulation,  is  entitled  to  hold  in  severalty  the 
public  property  of  the  old  corporation  which  falls  within  its  limits. 
North  Hempsted  v.  Ilempsted,  2  Wend.  (N.  Y.)  109  ;  The  Hartford 
Bridge  Company  v.  East  Hartford,  16  Conn.  149,  171. 

Extensive  powers  in  that  x'egard  are  doubtless  possessed  by  the  legis- 
lature ;  but  the  Constitution  provides  that  no  State  shall  pass  any  "  law 
impairing  the  obligation  of  contracts,"  from  which  it  follows  that  the 
legislature,  in  the  exercise  of  any  such  power,  cannot  pass  any  valid 
law  impairing  the  right  of  existing  creditors  of  the  old  municipality. 
1  Dillon,  Municipal  Corp.  (2d  ed.),  sect.  41  ;  Yan  Hoffman  v.  City  of 
Quincy,  4  Wall.  535,  554  ;  Lee  County  v.  Rogers,  7  id.  181,  184  ;  Butz 
V.  City  of  Mnscatine,  8  id.  575,  583  ;  Furman  v.  Nichol,  id.  44,  62. 

Where  a  municipal  corporation  has  the  power  to  contract  a  debt,  it 
has,  says  Dixon,  C.  J.,  by  necessary  implication,  authority  to  resort  to 


{^ 


VVVOw, 


50  MOUNT   PLEASANT   V.    BECKWITH. 

the  usual  mode  of  raisiiig  money  to  pa}-  it,  which  undoubtedl}'  is  taxa- 
tion.    /State  ex  rel.  JIasbroicck  v.  The  City  of  Milwaukee,  25  Wis. 
122,  133. 
„s^  (Jiy\v>A*^      Whenever  the  charter  of  a  city,  at  the  time  of  the  issue  of  bonds, 
/x  \rtyjv»-*tBade  it  the  duty  of  the  city  authorities  to  levy  and  collect  the  amount, 
^'x'  ^  ^        when  reduced  to  judgment,  like  other  cit}'  charges,  the  same  court  held 
.A^  Vv^K^T^-^^jj^g^^  a  subsequent  act  of  the  legislature  prohibiting  the  city  from  levying 
such  a  tax  would  be  repugnant  to  the  Constitution.     SoiUter  v.  The 
City  of  3Iadison,  15  id.  30. 

State  control  over  the  division  of  the  territory  of  the  State  into  cities, 

towns,  and  districts,  unless  restricted  by  some  constitutional  limitation, 

is  supreme,  but  the  same  court  admits  that  it  cannot  be  exercised  to 

annul  another  regulation  of  the  Constitution.     Chandlery.  Boston,  112 

Mass.  200  ;   6  Cush.  (Mass.)  580. 

-  Cities  or  towns,  whenever  they  engage  in  transactions  not  public  in 

""""^  their  nature,  act  under  the  same  pecuniary  responsibility  as  individuals, 

^tr~^  and  are  as  much  bound  by  their  engagements  as  are  private  persons,  nor 

^v~j-,  is  it  in  the  power  of  the  legislature  to  authorize  them  to  violate  their 

^^^^  ^    contracts.      The  Western  Saving  Fund  Society  v.  The  City  of  Phila- 


^!^^ 


delpliia,  31  Pa.  St.  175,  185. 

Text-writers  concede  almost  unlimited  power  to  the  State  legislatures 
in  respect  to  the  division  of  towns  and  the  alteration  of  their  boundaries, 
but  they  all  agree  tliat  in  the  exercise  of  these  powers  they  cannot  de- 
feat the  rights  of  creditors  nor  impair  the  obligation  of  a  valid  contract. 
1  Dillon,  Municipal  Corp.,  sect.  128;  Blanehard  v.  Bissell,  11  Ohio 
St.  96  ;  Lansing  v.  County  Treasurer,  1  Dill.  522,  528. 

Concessions  of  power  to  municipal  corporations  are  of  high  impor- 
tance ;    but  the^'  are  not   contracts,  and  consequenth'  are   subject  to 
legislative  control  without  limitation,  unless  the  legislature  oversteps 
the  limits  of  the  Constitution.     Xioyton  v.  Neic  Orleans,  12  La.  Ann. 
615. 
,  (jl^^**^       Bonds  having  been  issued  and  used  bj-  a  city  for  purchasing  land  for 
If^t*^  a  park,  which  was  pledged  for  the  payment  of  the  bonds,  held,  that  a 
'  subsequent  act  of  the  legislature  authorizing  a  sale  of  a  portion  of  the 

%r\\^  j\     park,  free  of  all  liens  existing  b\'  virtue  of  tlie  original  act,  was  in  viola- 
te   ljT~^     tion  of  the  Federal  Constitution,  as  impairing  the  obligation  of  contracts. 
Brooklyn  Bark  Com.  v.  Armstrong,  45  N.  Y.  234,  247. 

Laws  passed  by  a  State  impairing  the  obligation  of  a  contract  are 
void,  and  if  a  State  cannot  pass  such  a  law,  it  follows  that  no  agencj' 
can  do  so  which  acts  under  the  State  with  delegated  authority.  Cooley, 
Const.  Lim.  (4th  ed.)  241  ;  Angell  &.  Ames  on  Corp.  (9th  ed.),  sects. 
332,  333. 
Xj^j>^  Municipal  debts  cannot  be  paid  by  an  act  of  the  legislature  annulling 

jj-  C^MA^-*-*    thecliaiter  of  the  municipalit}-,  and.  il'  m^t,  then  the  creditors  of  suclT" 
..•.,<(      v^     a  political  division  must  have  some  remedy  after  the  annulment  takes 
"'"^  A     place^     \V  ithout  officers,  or  the  power  of  electing  such  agents,  a  munici" 
()al  corporation,  if  it  can  be  so  called,  would  be  an  entity  very  difficult 


MOUNT   PLEASANT    V.    BECKWITH. 


51 


to  be  subjected  to  judicial  process  or  to  legal  responsibilit}' ;  but  when 
the  entity  itself  is  extinguished,  and  the  inhabitants  with  its  territory 
and  other  property-  are  transferred  to  other  municipalities,  the  sugges- 
tion that  creditors  may  pursue  their  remedy  against  the  onginal  con- 
traclingparty  is  little  less  than  a  mockery.  Public  property,  with  the 
inhabitants  and  their  estates,  and  the  power  of  taxation,  having  been 
transferred  by  the  authorit}'  of  the  legislature  to  the  appellants,  the 
principles  of  equity  and  good  conscience  require  that  inasmuch  as  they 
are,  and  have  been  for  nearly  twenty  years,  in  the  enjoyment  of  the 
benefits  resulting  from  the  annexation,  they  shall  in  due  proportions 
also  bear  the  burdens.     JVew  Oi'leans  v.  Clarlc^  95  U.  S.  644,  654. 

Equitable  rules  of  decision  are  sufficiently  comprehensive  in  their  reach 
to  do  justice  between  parties  litigant,  and  to  overcome  every  difficulty 
which  can  be  suggested  in  this  case.  States  are  divided  and  subdivided 
into  such  municipalities,  called  counties,  cities,  towns,  and  school  dis- 
tricts, and  the  legislature  of  every  State  is  required  ever\'year  to  pass  laws 
modifying  their  charters  and  enlarging  or  diminisliing  their  boundaries. 
Nor  are  tlie  questions  presented  in  tliis  case  either  new  in  principle  or 
difficult  of  application.  New  forms  are  given  to  such  charters  in  every 
day's  experience,  when  the  limits  of  an  old  corporation  are  changed  hy 
annexation  of  new  territory,  or  portions  of  the  territory  of  the  old  munici- 
pality are  set  off  and  annexed  to  another  town.  Both  corporations,  in 
such  a  case  continue,  though  it  may  be  that  the  charters  are  much 
changed,  and  that  the  inhabitants  of  the  territory  annexed  or  set  off  fall 
under  different  officers  and  new  and  very  diverse  regulations.  Beckwith 
V.  City  of  Racine^  7  Biss.  142,  149. 

Pecuniary  burdens  may  be  increased  or  diminished  by  the  change  ; 
but,  in  the  absence  of  express  provisions  regulating  the  subject,  it  will 
be  presumed  in  every  case  where  both  municipalities  are  continued, 
that  the  outstanding  liabilities  of  the  same  remain  unaffected  by  such 
legislation.  Unlike  that  in  this  case,  the  charter  of  the  old  town  was 
vacated  and  annulled,  from  which  it  follows  that  the  same  principles  of 
justice  require  that  the  appellant  towns,  to  which  the  territory,  property, 
and  inhabitants  of  the  annulled  municipality  were  annexed,  should  be- 
come liable  for  its  outstanding  indebtedness.  Decree  affirmed. 

Mr.  Justice  Miller,  with  whom  concurred  Mr.  Justice  Field  and  1 
Mr.  Justice  Bradley,  dissenting.  I 

I  am  of  opinion  that  it  requires  legislation  to  make  a  legal  obligation 
against  the  new  town,  and  make  the  apportionment  of  the  debt  ;  and  I 
dissent  on  that  ground  from  the  judgment  and  opinion  of  the  court  in 
this  case. 


ff 


52  BKEWIS   V.   CITY   OF   DULUTH.,     -j-^  .  ^t^JT*^ 

>.  r^pO^      BREWIS   V.    CITY   OF   DULUTH   AND   VILLAGE  OF  p^S>'^ 
f\\  DULUTH.  <;cw>^-«^^'^ 

1881.     3  McCrary  U.  S.  Circuit  Court  Reports,  219.         j^jTrvw-*   f 

U.  S.  Circuit  Court  for  District  of  Minnesota.  (S^^'^^  v^^TTTj 

In  equity.     Demurrer  to  bill  of  complaint.  'Yv^-p^  '*-T  .^ 

This  suit  is  brought  against  the  city  of  Duluth  and  the  village  of  vV{V*i 
Duluth  to  recover  the  coupons  overdue  upon  bonds  of  the  Citj  of  Duluth, 
in  this  district.     A  demurrer  is  interposed  by  the  village  of  Duluth.       rT» 
Gilinan  <&  Clouffh,  for  demurrer.  ^^^-'"^^ 

Williams  &  Davidson,  contra,  Mj 

Nelson,  District  Judge.  The  complainant  is  the  owner  of  certain  tuk)* 
bonds  issued  under  an  act  of  the  legislature  of  Minnesota,  approved 
March  8, 1873,  authorizing  the  city  of  Duluth  to  fund  the  debt  previously 
incurred  for  improving  the  harbor,  and  for  other  purposes.  The  bonds 
were  payable  in  not  less  than  20  nor  more  than  30  years  from  the  date 
of  their  issue,  and  bear  interest  at  the  rate  of  7  per  cent,  per  annum, 
paj-able  semi-annually  in  tlie  eit}'  of  New  York.  The  complainant  be- 
came a  bona  fide  holder  of  the  bonds  and  coupons  previous  to  1875. 

It  appears  that  on  February  23,  1877,  the  legislature  of  the  state  of 
Minnesota  created  the  \jjl.'\ge  of  Duluth  out  of  a  part  of  theterrit^IX 
of  the  city  of  Duluth,   under  an  act  entitled   "An  act  to  create  the 
,  village  of  "Duluth,    *    *    *    and  to  apportion  the  debts  of  the  citj-  of 

Duluth  between  itself  and  the  village  of  Duluth,  and  provide  for  the 
payment  thereof." 

This  act  carved  the  village  out  of  the  cit}'  limits,  taking  and  embrac- 
ing in  the  village  all  the  business  part  of  the  city  and  business  houses, 
the  harbor,  railroad  depots  and  tracks,  nearl}-  all  the  dwelling-houses, 
all  the  population  except  about  100  inhabitants,  and  nineteen-twentieths 
of  all  the  taxable  propert}' ;  and  no  provision  was  made  for  the  pay- 
ment of  the  debts  of  the  cit}"  by  the  village  unless  creditors  would 
accede  to  the  terms  imi)()scd  by  the  legislature  as  hereinafter  stated. 
It  also  appears  that  on  Februar\'  28,  1877,  an  act  was  passed  entitled 
"An  act  to  amend  the  act  entitled  an  act  to  incorporate  the  cit}' of 
Duluth,"  approved  March  o,  1870,  and  this  act  declared  that  the  ser- 
vice of  all  summons  and  process  in  suits  against  the  city  of  Duluth 
should  be  made  on  the  mayor  of  tlie  city,  and  that  service  made  on  an}- 
other  officer  should  not  be  valid  against  the  cit}-.  It  also  provided  that 
the  term  of  the  office  of  mayor  should  cease  on  the  following  April, 
1877,  and  no  provision  was  made  for  the  election  of  a  successor  or  for 
filling  a  vacancy  ;  that  no  taxes  should  be  levied  without  the  affirma- 
tive vote  of  all,  to-wit,  four  aldermen  ;  and  since  the  passage  of  the 
act  there  have  never  been  four  aldermen  in  the  cit}'  qualified  to  act. 
There  is  a  section  authorizing  the  lev}'  of  taxes  by  the  count}-  of  St. 
Louis,  in  which  the  city  is  situated,  V)ut  all  taxes  thus  levied  and  col' 
lected  must  be  paid  to  the  village  of  Duluth. 


BREWIS    V.    CITY    OF   DULUTH. 


53 


On  the  facts  admitted  by  the  demurrer  the  complainant  is  entitled  to 
relief.  The  legislature  undoubtedly  had  the  right  to  create  the  village 
of  Duluth  out  of  the  territory  of  the  cit}-,  and,  as  between  the  city  and 
the  village,  apportion  the  existing  indebtedness  ;  but  when  the  corpora- 
tion which  created  the  debt  is  shorn  of  its  population  and  taxable  prop- 
ert}'  to  such  an  extent  that  there  is  no  reasonable  expectation  of  its 
meeting  the  present  indebtedness,  and  it  is  unable  so  to  do,  the  credP 
tors,  at  least,  can  enforce  a  proportionate  share  of  their  obligations 
against  the  two  corporations  carved  out  of  one.  Both  are  liable  to  the' 
extent  of  the  property  set  off  to  each  respectively. 

The  debt  of  the  city  at  the  time  the  village  was  created  by  act  of 
February  23,  1877,  was  about  $400,000,  and  the  act  creating  the 
village  of  Duluth  authorized  an  apportionment  of  the  debts  as 
follows : 

Section  3,  in  substance,  provides  that  after  one  year  from  February 
23,  1877,  the  village  shall  become  jointly  liable  with  the  city  on  all 
bonds  issued  prior  to  the  passage  of  this  act,  unless  it  shall  within  the 
year  take  up  and  cancel,  as  hereinafter  provided,  $218,000  of  the 
evidence  of  indebtedness  outstanding  of  the  city,  provided  that  inter- 
est to  Januar}-  1,  1878,  on  all  bonds  and  maturing  coupons  shall  be 
treated  and  regarded  as  part  of  said  evidence  of  outstanding  indebted- 
ness. 

Section  4  enacts  that  not  more  than  $100,000  of  vHlage  6  per  cent. 
30-year  bonds  shall  be  issued  for  taking  up  outstanding  bonds  and 
orders  of  the  _city  of  Duluth  to  the  amount  of  $218,000,  and  interest 
thereon  to  January  1,  1870.  These  bonds  are  to  be  placed  in  the 
possession  of  the  judge  of  the  Eleventh  judicial  district  of  the  state  of 
Minnesota. 

Section  5  enacts  that  persons  holding  bonds,  matured  coupons,  or 
orders  of  the  city  of  Duluth  prior  to  the  passage  of  this  act  may  sur- 
render the  same  to  the  judge  of  the  district  court  for  exchange  for  the 
bonds  of  the  village  of  Duluth;  and  whenever  $218,000  has  been  sur- 
rendered, the  judge  shall  issue  to  the  persons  so  surrendering,  the  bonds 
of  the  village  of  Duluth  to  one-fourth  of  the  amount  so  surrendered, 
and  on  the_delivei-}'  of  the  village  bonds  shall  cancel  the  amount  of 
city  bonds  received  in  exchange. 

"tJther "sections  provide  for  annexation  of  more  land  from  the  city 
limits. 

This  statute  interferes  with  the  rights  of  creditors.  The  obligations 
of  a  municipal  corporation  are  not  affected,  although  the  name  may  be 
changed  and  the  territory  increased  or  diminished,  if  the  new  organiza- 
tion embraces  substantially  the  same  territory  and  the  same  inhabitants. 
It  may  be  true  that  generally  creditors,  to  obtain  relief,  must  look  ex- 
clusively to  the  corporation  creating  the  debt ;  but  when  a  state  of  facts 
exfsts  as  disclosed  here,  and  the  old  corporation  is  diminished  in  popu^ 
laHoh,  wealth,  and  territory  to  the  extent  admitted,  it  would  be  a 
mockery  of  justice  to  withhold  the  relief  asked. 


54 


MERIWETHER   V.    GARRETT. 


s.-J-*^- 


TVithout  at  this  time  considering  more  fully  the  question  presented, 
whether  the  several  acts  of  February  25,  1877,  and  February  28,  1878, 
impair  the  obligations  of  the  contract  between  the  city  of  Duluth  and 
its  creditors,  it  is  clear  to  my  mind  that  the  bill  on  its  face  contains 
sufficient  equity  and  calls  for  an  answer. 

The  demurrer  is  overruled,  and  the  defendant  can  have  until  Jan- 
uary rule-day  to  answer. 


\McCrary,  Circuit  J'udge,  concurred.' 


^e\. 


?>■ 


(S\,^ 


^ut^^ 


^•A 


o 


V 


'V 


^-^1 


iVA5'  v^ 


k/^3 


GARRETT,  jr^.^^^ 

1880.     102  U.  5.472.2  ^^^cX^^^^^^^r^^  l^ 


MERIWETHER 


V. 


Appeal  from  U.  S.  Circuit  Court  for  Western  District  of  Tennessee.  \ 


<5-v- 


s3^ 


In  EguitM.  The  original  bill  was  filed  against  the  cit}-  of  Memphis, rjlA)^*^ 
Jan.  28,  1879,  by  Garrett  et  als. ;  alleging,  in  substance,  that  the 
plaintiffs  are  holders  of  overdue  bonds  and  coupons  of  the  cit}',  upon 
nmch  of  which  indebtedness  they  had  secured  judgments  and  writs  of 
mandamus  to  compel  the  collection  thereof;  but  that  the  city  and  its 
officials  have  for  years  failed  to  collect  the  taxes  assessed.  The  bill 
pyaj's  for  the  appointment  of  a  receiver,  under  the  act  of  March  19, 
1877,  to  take  charge  of  the  city  assets,  including  bills  for  past  due 
taxes,  and  to  collect  all  outstanding  claims  due  to  the  cit}',  and  to 
settle  the  debts  of  the  cit}'. 

B}-  an  act  passed  Jan.  29,  1879,  and  approved  Jan.  31,  1879,  the 
legislature  repealed  certain  specifically  named  acts  incorporating  Mem- 
phis and  amending  its  charter.  The  act  of  1879  also  provides  that  the 
charters  of  all  municipal  corporations  in  this  State  having  a  population 
of  35,000,  or  over,  (which  Memphis  had)  "  be  and  the  same  are  hereb}' 
repealed,  and  all  municipal  offices  held  thereunder  are  abolished."  The 
said  act  further  provided  that  "  the  population  within  the  territorial 
limits  as  now  defined,  and  the  territor}-  of  all  municipal  corporations 
heretofore  governed  "  under  certain  specified  statutes  (which  are  hereby' 
repealed)  "are  hereb}'  resolved  back  into  the  body  of  the  State,  and 


^  Upon  the  final  hearing,  at  .June  term,  1882,  the  court,  from  evidence  given,  found 
that  the  city  of  Duluth  "is  now  in  a  condition  to  meet  its  matured  obligations,  and, 
prospectively,  all  others  as  thev  mature."  The  court  said  that  the  taxable  property 
in  the  city  "  has  already  increased  nearly  or  quite  fourfold,  and  is  advancing  rapidly." 
"  There  is,  therefore,  no  legal  or  equitable  reason,  in  the  light  of  authority,  for  going 
behind  the  legislative  apportionment."  The  court  reaffirmed  the  intrinsic  correctness 
of  the  view  taken  in  the  above  opinion  given  upon  the  demurrer,  but  said  :  "  The  case, 
as  now  before  the  court,  is  very  different  from  that  presented  on  demurrer."  The  bill 
was  dismissed.     13  Fed.  Rep.  3.34.  —  Ed. 

2  The  statement  is  aljridged,  adopting  largely  the  condensed  statement  in  the 
opinion  of  Field,  J.,  p.  502-.510.  The  dissenting  opinion  of  Strong,  J.,  is  omitted ;  also 
portions  of  the  opinion  of  Field,  J. — I^d. 


MERIWETHER    V.    GARRETT. 


55 


all  offices  held  under  and  bv  virtue  of  said  repealed  sections  are  hereby 
abolished  ;  and  all  power  of  taxation,  in  any  form  whatever,  lieretofore  \ 
vested  in  or  exercised  by  the  authorities  of  said  municipal  corporations 
by  virtue  of  any  of  tlie  acts  of  incorporation  hereinbefore  recited,  or 
otherwise,  is  for  ever  withdrawn  and  reserved  to  the  legislature  ;  and 
the  public  buildings,  squares,  promenades,  wharves,  streets,  alleys, 
parks,  fire-engines,  hose  and  carriages,  liorses  and  wagons,  engine- 
houses,  engineer  instruments,  and  all  other  property,  real  and  personal, 
hitherto  used  by  such  corporations  for  municipal  purposes,  are  hereby 
transferred  to  the  custody'  and  control  of  the  State,  to  remain  public 
property,  as  it  has  always  been,  for  the  uses  to  wliich  said  property 
has  been  hitlierto  applied.  And  no  person  holding  office  under  and  by 
virtue  of  an}'  of  said  repealed  sections,  or  an}'  of  the  acts  above  recited, 
shall,  from  and  after  the  passage  of  this  act,  exercise  or  attempt  to 
exercise  an}'  of  the  powers  or  functions  of  said  office. 

On  the  same  da}'  with  the  passage  of  the  repealing  act,  the  legisla- 
ture passed  another  act  to  establish  taxing  districts^in  the  State,  and  to 
provide  the  means  for  their  local  government.  It  declared  that  the 
several  communities  embraced  in  the  territorial  limits  of  the  repealed 
corporations,  and  of  such  other  corporations  as  might  surrender  their 
cliarters  under  the  act,  were  created  taxing  districts  in  order  to  provide 
tlie  means  of  local  government  for  their  peace,  safety,  and  general  wel- 
fare ;  that  the  necessary  taxes  for  the  support  of  the  governments  thus 
established  should  be  imposed  directly  by  the  General  Assembly,  and 
not  otherwise ;  that  in  administering  the  affairs  and  providing  the 
means  of  local  government  the  following  ageiicias  and  instrumjyitalities 
were  estal)lished,  —  namely^  a  board  of  fire  and  police  commissioners; 
a  committee  on  ordinances  or  local  laws,  to  be  knowp  as  the  legislative 
councjl  of  the  taxing  district;  a  board  of  health,  and  a  board  of  pulilic 
works  ;  and  it  prescribed  in  detail  the  duties  and  powers  of  these  local 
agencies.  The  act  prohibited  the  commissioners  from  issuing  any 
bonds,  notes,  scrip,  or  other  evidences  of  indebtedness,  or  from  con- 
tracting for  work,  material,  or  services  in  excess  of  the  amount  levied 
for  them  for  that  year ;  and  declared  that  no  property,  real  or  personal, 
held  by  them  for  public  use  should  ever  be  subject  to  execution,  attach- 
ment, or  seizure  under  any  legal  process  for  any  debt  created  by  them  ; 
that  all  taxes  due,  or  moneys  in  the  hands  of  the  county  trustee,  or  on 
deposit,  should  be  exempt  from  seizure  under  attachment,  execution, 
garnishment,  or  otlier  legal  process.  It  also  declared  that  no  writ  of 
mandamus  or  other  process  should  lie  to  compel  them  or  other  govern-/ 
ing  agencies  to  levy  any  taxes,  and  that  neither  the  commissioners,  norl 
trustee,  nor  the  local  government  should  be  held  to  pay  or  be  liable  for 
any  debt  created  by  the  extinct  corporations,  and  that  none  of  thei 
taxes  collected  under  the  act  should  ever  be  used  for  the  payment  of  any  M*iKv^ 
of  said  debts.  The  act  also  declared  that  all  the  property  previously  used 
by  the  corporations  for  purposes  of  government  was  transferred  to  the 
custody  and  control  of  the  board  of  commissioners  of  the  taxing  dis- 


i^.M 


■v,*v*C7 


fV-N-  -,. 


jC-O 


56 


MEKIWETHEE   V.   GAERETT. 


^ 


*\ 


tricts,  to  remain  public  property  for  the  uses  to  which  it  had  previously 
been  applied,  and  that  all  indebtedness  for  taxes  or  otherwise,  whether 
in  litigation  or  not,  due  to  the  extinct  municipalities,  should  vest  in  and 
become  the  property-  of  the  State,  to  be  disposed  of  for  the  settlement 
of  their  debts  as  should  thereafter  be  provided  by  law. 

In  Februar}-,  1879,  the  plaintiffs  filed  an  amended  and  supplemental 
bill,  making  certain  officials  co-defendants,  and^illeging  that^the  above 
acts  of  Jan.  31,  1879,  were  unconstitutional.  Bills  were  also  filed  b^' 
other  judgment  creditors.  Feb.  12,  1879,  the  court  ordered  that  the 
several  causes  be  consolidated,  and  appointed  Latham  receiver.  The 
order  directs  the  receiver  (inter  alia)  to  take  possession  of  all  the  real 
and  pei'sonal  property  of  the  city,  except  certain  property  used  for 
public  purposes ;  to  collect  rents  from  citj-  property ;  and  to  collect 
unpaid  taxes. 

March  14,  1879,  the  legislature  passed  an  act,  providing,  as  to  the 
municipal  corporations  whose  charters  may  have  been  repealed,  that  the 
governor  "  shall  appoint  an  officer  for  such  extinct  corporations  respec- 
tively, to  be  known  as  a  receiver  and  back-tax  collectflj-."  The  act 
required  said  officer  to  take  possession  of  all  books,  papers,  and  docu- 
ments pertaining  to  the  assessment  and  collection  of  taxes,  which  had 
been  levied  at  the  time  of  the  repeal  of  the  charters.  It  ordered  him  to 
file  a  bill  in  the  Chancer}'  Court  of  the  county  in  which  the  corporation 
was  situated,  in  the  name  of  the  State,  in  behalf  of  all  creditors  against 
all  its  delinquent  tax-payers,  and  provided  that  taxes  assessed  prior  to 
1875  might  be  settled  in  the  valid  indebtedness  of  the  extinct  munici- 
pality, whether  due  or  not,  and  that  the  receiver  should  receive  evi- 
dences of  such  indebtedness  at  certain  designated  rates..  It  also 
prohibited  him  from  coercing  payment  of  a  greater  sum  than  one-fifth 
of  the  taxes  in  arrears  annually,  so  as  to  distribute  the  whole  thi-oiigTi 
five  equal  annual  instalments,  commencing  from  his  appointment  and 
qualification.  It  authorized  the  Chancery  Court  to  enforce  all  liens 
upon  property  for  the  paj'ment  of  taxes,  and  to  order  all  sales  neces- 
sary for  their  collection  ;  and  to  settle  and  adjust  all  equities,  priorities, 
and  liens  ;  and  to  give  to  the  defendants  and  creditors  all  the  relief 
which  might  be  given  if  there  were  as  many  separate  suits  as  there 
were  creditors  and  delinquent  tax-payers.  It  provided  that  the  taxes 
as  collected  should  be  paid  into  the  State  treasur}',  and  be  paid  out  to 
parties  entitled  to  receive  them,  as  adjudged  b}'  the  Chancery  Court, 
upon  the  warrant  of  the  receiver,  countersigned  by  the  Chancellor.  It 
required  the  receiver,  in  paying  the  mone^'  collected  into  the  treasury, 
to  distinguish  the  sources  whence  it  was  derived,  showing  the  amount 
from  each  special  and  general  tax,  so  that  the}'  might  be  kept  separate, 
and  be  paid  out  to  creditors  according  to  the  priority,  lien,  or  equity 
determined.  The  act  was  accompanied  with  a  proviso  that  it  should 
not  interfere  with  an}-  vested  rights  entitling  parties  to  a  speedy 
collection. 

Under'  this  act,  Meriwether  was  appointed  by  the  governor  receiver 


MERIWETHER   V.    GARRETT.  57 

and  the  back-tax  collector  of  Memphis.     The  plaintiffs  subseqnentlv 
amended  their  bill  by  making  Meriwether  a  defendant. 

To  the  bill,  as  consolidated  and  amended,  the  defendants  demurre<l. 
Upon  tliis  demurrer  several  questions  arose,  on  which  the  judges  of  the 
Circuit  Court  were  divided  in  opinion.     The  prevailing  opinion  of  the 
presiding  judge  being  against  the  demurrer,  it  was  overruled.     Judg- 
ment was  rendered  in  favor  of  plaintiffs.     The  dcor&s  adjudged  that  Q, p  <_,<._o^ 
Latham,  the  receiver,  should  proceed  to  collect  the  assets  and  property! 
ofnre1nty^(inc]uding  back-taxes)  in  the  manner  directed  by  the  previous/ 
order  of  the  court.     It  also  eiijoined_  Meriwether  from  attempting  tol 
collect  ox  interfere  with  the  assets  in  the  possession  of  tlie  said  receiverJ  c\l,^j_^  i 
And  the  decree  further  adjudged  that  all  the  property  within  the  limits    ^"^         \ 
of  the  temtorj'  of  the  city  of  Memphis  was  liable  and  might  be  sul)- 
jected  tol-he  payment  of  all  the  debts  of  the  city,  and  that  such  liability  i    jL/vV 
would  be  enforced  thereafter,  from  time  to  time,  in  such  manner  as  the  \ 
court  might  direct.  i 

From  the  decree  the  defendant  appealed. 

Joseph  B.  Meiskell,   George  Davitt,  and  Minor  Meriwether,  for 
appellants. 

William  M.  Randolph,  contra. 

Mr.  Chief  Justice  Waite  announced  the  conclusion?  reached  bj'  the 
court  as  follows  :  — 

1.  Property  held  for  publir^  iiises.  &npli  ns  public  buildings,  streets.  _j^*^^ 
squares,  parks,  promenades,  wharves,  landing-places,  fire-engines,  hose/ 
and  hose-carriages,  engine-houses,  engineering  instruments,  and  gener- 
ally everything  held  for  governmental  purposes,  cannot  be  subjected  to 
the  payment  of J,he^debts_oQhe  city.     Its  public  character  forbids  such  1 
an  appropriation.     Upon  the  repeal  of  the  charter  of   the  city,  such' 
property  passed  under  tlie  immediate  control  of  the  State,  the  power 
once  delegated  to  the  city  in  tliat  behalf  having  been  withdrawn. 

2.  The  private  property  of  individuals  within  the  limits  of  the  terri- /  lM-*;^J^  " 
t.ory  of  the  city  cannot  be  subjected  to  the  payment  of  the  debts  of  the 
city,   except  tlirougli  taxation.     Tlie  doctrine  of  some  of  the  States, 
tlTat  such  property  can  be  reached  directly  on  execution  against  the 
municipality,  has  not  been  generally  accepted. 

3.  The  power  of  taxation  is  legislative,  and    cannot  be   exercised  (  \X^\j.^^ 
otherwise  than  under  the  authority  of  the  legislature.  "~ 

4.  Taxes  levied  according  to  law  before  the  repeal  of  the  charter, 
other  than  such  as  were  levied  in  obedience  to  the  special  requirement 
of  contracts  entered  into  under  the  authority  of  law,  and  such  as  were 
levied  under  judicial  direction  for  the  payment  of  judgments  recovered 
against  the  cit}-,  cannot  be  collected  through  the  instrumentality  of  a 
court  of  chancery  at  the  instance  of  the  creditors  of  the  city.  Such 
taxes  can  only  be  collected  under  authority  from  the  legislature.  If  noi 
such  authority  exists,  the  remedy  is  by  a[)peal  to  the  legislature,  which  I 
alone  can  grant  relief.     Whether  taxes  levied  in  obedience  to  contract ' 


( 


fv^ 


•  8  MERIWETHER   V.    GARRETT. 

>jjCuO^  [obligations,  or  under  judicial   direction,  can   be  collected    through  a 
receiver  appointed  b}-  a  court  of  chancer^',  if  there  be  no  public  officer 
charged  witli  autborit}'  from  the  legislature  to  perform  that  dut\-,  is  not 
decided,  as  the  case  does  not  require  it. 
^       5.    The  receiver  and  back-tax  collector  appointed  under  the  authority 

^r-y^^^'^''^  of  the  act  of  March  13,  1879,  is  a  public  officer,  clothed  ^ith  authorit}- 
from  the  legislature  for  the  collection  of  the  taxes  levied  before  the 
repeal  of  the  charter.  The  funds  collected  by  hiin  from  taxes  levied 
under  judicial  direction  cannot  be  appropriated  to  an}-  other  uses  than 
those  for  which  the}'  were  raised.  He,  as  well  as  any  other  agent  of 
the  State  charged  with  the  duty  of  their  collection,  can  be  compelled  b}' 
appropriate  judicial  orders  to  proceed  with  the  collection  of  such  taxes 
b}'  sale  of  proi)erty  or  by  suit  or  in  an}-  other  way  authorized  by  law, 
and  to  apply  the  proceeds  upon  the  judgments. 

X^^  6.    The  bills  in  this  case  cannot  be  amended  so  as  to  obtain  relief 

against  the  receiver  and  back-tax  collector,  without  making  an  entirely 
new  suit.     They  were  not  framed  with  a  view  to  any  such  purpose. 

7.  The  decree  of  the  court  below  is  reversed. 

8.  The  cause  is  remanded,  with  instructions  to  dismiss  the  billS; 
without  prejudice.  If,  on  the  settlement  of  the  accounts  of  the  receiver 
herein,  it  shall  be  found  he  has  any  money  in  his  hands  collected  on 
taxes  levied  under  judicial  direction  to  pay  judgments  in  favor  of  any 
persons  wlio  have  become  parties  to  this  suit,  an  order  ma}*  be  made 
directing  its  appropriation  to  the  payment  of  such  judgment. 

Upon  the  first,  second,  third,  and  fifth  of  these  propositions  the  judg- 
ment of  the  court  is  unanimous.  Upon  the  fourth,  sixth,  seventh,  and 
eighth  it  is  by  a  majority  only. 

Mr.  Justice  Field.  Mr.  Justice  Miller,  Mr.  Justice  Bradley,  and 
\  myself  concur  in  the  judgment  rendeied,  but,  as  the  judgment  is  not 

accompanied  by  a  statement  of  the  reasons  on  which  it  is  founded,  I 
proceed  to  state  those  which  have  controlled  us. 

[After  stating  the  case.] 

Tliis  decree  is  manifestly  erroneous  in  its  main  provisions.  It  pro- 
ceeds upon  the  theory  that  the  property  of  every  description  held  by 
the  municipality  at  the  time  of  its  extinction,  whether  held  in  its  own 
right  or  for  public  uses,  including  also  in  that  designation  its  uncol- 
lected taxes,  were  chargeable  with  the  payment  of  its  debts,  and  con- 
stituted a  trust  fund,  of  which  the  Circuit  Court  would  take  possession 
and  enforce  the  trust ;  and  that  the  private  property  of  the  inhabitants 
of  the  city  was  also  liable,  and  could  be  subjected  by  the  Circuit  Court 
to  the  payment  of  its  debts.  In  both  particulars  the  theory  is  radically 
wrong. 

The  right  of  the  State  to  repeal  the  charter  of  Memphis  cannot  be 
questioned.  Municipal  corporations  are  mere  instrumentalities  of  the 
State  for  the  more  convenient  ndministration  of  local  government. 
Their  powers  are  such  as  the  legislature  may  confer,  and  these  may  be 


MEEIWETIIEE   V.   GARRETT. 


59 


enlarged,  abridged,  or  entire!}-  withdrawn  at  its  pleasure.  This  is 
common  learning,  found  in  all  adjudications  on  the  subject  of  municipal 
bodies  and  repeated  by  text-writers.  There  is  no  contract  between 
the  State  and  the  public  that  the  charter  of  a  city  shall  not  be  at  all 
times  subject  to  legislative  control.  All  persons  who  deal  with  such 
bodies  are  conclusively  presumed  to  act  upon  knowledge  of  the  power 
of  the  legislature.  There  is  no  such  thing  as  a  vested  right  held  bv 
any  individual  in  the  grant  of  legislative  power  to  them.  United 
States  V.  Railroad  Co.,  17  Wall.  322;  Commissioners  v.  Lucas, 
Treasurer,  93  U.  S.  108;  People  \.  Horris,  13  Wend.  (N.  Y.)  325; 
Philadelphia  v.  Fox,  64  Pa.  St.  169  ;  31ontpelier  v.  East  Montpelier^ 
29  Vt.  12;  Angell  &  Ames,  Corp.  (10th  ed.),  sect.  31;  Dill.  Mun. 
Corp.,  sect.  30;  Coolej',  Const.  Lim.  192,  193.  By  the  repeal  the 
legislative  powers  previously  possessed  bj'  the  corporation  of  Memphis 
reverted  to  the  State.  A  portion  of  them  the  State  imraediatel}' 
vested  in  the  new  government  of  the  taxing  district,  with  many  restric- 
tions on  the  creation  of  indebtedness.  A  portion  of  them  the  State 
retained  ;  it  reserved  to  the  legislature  all  power  of  taxation.  It  thus 
provided  against  future  claims  from  the  improvidence  or  recklessness 
of  the  new  government.  The  power  of  the  State  to  make  this  change 
of  local  government  is  incontrovertible.  Its  subsequent  provision  for 
the  collection  of  the  taxes  of  the  corporation  levied  before  the  repeal  of 
its  charter,  and  the  appropriation  of  the  proceeds  to  the  payment  of  its 
debts,  remove  from  the  measure  any  imputation  that  it  was  designed  to 
enable  the  city  to  escape  from  its  just  liabilities. 

But  while  the  charter  of  a  municipal  corporation  may  be  repealed  at 
the  pleasure  of  the  legislature,  where  there  is  no  inhibition  to  its  action 
in"  the  Constitution  of  the  State,  the  lawful  contracts  of  the  corporation, 
made  whilst  it  was  in  existence,  may  be  subsequently  enforced  against 
property  held  by  it,  in  its  own  right,  as  hereafter  described,  at  the  tim.e 
of  the  repeal.  In  this  respect  its  position  is  not  materially  different 
from  that  of  a  private  individual,  whose  propert}*  must,  upon  his 
decease,  go  to  the  satisfaction  of  his  debts  before  those  who  succeed  to 
bis  rights  can   share  in  its  distribution. 

[As  to  the  language  used  in  Broughton  v.  Pmsacola,  93  U.  S.  266, 
p.  268.]  It  means  that  whatever  property  a  municipal  corporation  holds 
subject  to  the  payment  of  its  debts,  will,  after  its  dissolution,  be  so 
administered  and  applied  by  a  court  of  equit}-. 


)J^<>' 


0^ 


What,  then,  is  the  property  of  a  municipal  corporation,  which,  upon 
its  dissolution,  a  court  of  equity  will  lay  hold  of  and  apply  to  the  pa}-- 
ment  of  its  debts?  We  answer,  firstri;hat  it  is  not  property  held  by 
the  corporation  in  trust  for  a  private  charity,  for  in  such  proi)erty  the 
corporation  possesses  no  interest  for  its  own  uses;  and,  secondlyrthat 
it  is  not  property  held  in  trust  for  the  public,  for  of  such  propcfty  the 
corporation  is  the  mere  agent  of  the  State      In  its  streets,  wharves. 


60  MERIWETHER   V.    GARRETT. 

cemeteries,  hospitals,  court-houses,  and  other  public  buildings,  the  cor. 
poration  has  no  proprietary  rights  distinct  from  the  trust  for  the  public. 
It  holds  them  for  public  use,  and  to  no  other  use  can  the}'  be  appropri- 
ated without  special  legislative  sanction.  It  would  be  a  perversion  of 
that  trust  to  apply  them  to  other  uses.  The  courts  can  have  nothing  to 
do  with  them,  unless  appealed  to  on  behalf  of  the  public  to  prevent 
their  diversion  from  the  public  use.  The  dissolution  of  the  charter  does 
not  divest  the  trust  so  as  to  subject  property  of  this  kind  to  a  liabilitj'" 
from  which  it  was  previoush'  exempt.  Upon  the  dissolution,  the  prop- 
erty passes  under  the  immediate  control  of  the  State,  the  agency  of  the 
corporation  then  ceasing.  2  Dillon,  Mun.  Corp.,  sects.  445,  446 ; 
Schaffer  v.  Cadwallader ,  36  Pa.  St.  126  ;  City  of  Daxsenport  v.  Peoria, 
Marine  &  Fire  Insurance  Co.^  17  Iowa.  276  ;  Askins  v.  Common- 
wealth, 1  Duv.  (Ky.)  275 ;  The  President,  t&c.  v.  City  of  Indian- 
apolis, 12  Ind^620. 

In  the  thiroiplace,  we  say  that  taxes  previously  levied,  but  not 
collected  on  the  dissolution  of  the  corporation,  do  not  constitute  its 
property;  and  in  the  absence  of  statutory  authorit}'  they  cannot  be_ 
subsequently  collected  b}'  a  court  of  equit}-  through  officers  of  its  own 
appointment,  and  applied  to  the  payment  of  the  creditors  of  the  cor- 
poration. Taxes  are  not  debts.  It  was  so  held  by  this  court  in  the 
case  of  Oregon  v.  Lane  County,  reported  in  7th  Wallace.  Debts  are 
^  obligations  for  the  payment  of  money  founded  upon  contract,  express 

or  implied.  Taxes  are  imposts  levied  for  the  support  of  the  govern- 
ment, or  for  some  special  purpose  authorized  by  it.  The  consent  of 
the  tax-pa3'er  is  not  necessary  to  their  enforcement.  They  operate  in 
invitum.  Nor  is  their  nature  affected  by  the  fact  that  in  some  States 
—  and  we  believe  in  Tennessee  —  an  action  of  debt  ma}'  be  instituted 
for  their  recovery.  The  form  of  procedure  cannot  change  their  char- 
acter. City  of  Augusta  v.  North,  57  Me.  392  ;  City  of  Camden  v. 
Allen,  2  Dutch.  (N.  J.)  398  ;  Ferry  v.  Washburn,  20  Cal.  318.  Nor 
are  they  different  when  levied  under  writs  of  mandamus  for  the  pa}'- 
ment  of  judgments,  and  when  levied  for  the  same  purpose  by  statute. 
The  levy  in  the  one  case  is  as  much  by  legislative  authority  as  in  the 
^  'c  (' '  '  '  other.  The  writs  of  mandamus  only  require  the  officers  of  assessment 
.  ^T^v  • ;.  and  collection  to  obey  existing  law.  In  neither  case  are  the  taxes  liens 
upon  property  unless  made  so  by  statute.  Philadelphia  v.  Greble^ 
38  Pa.  St.  339  ;  Hoioell  v.  Philadelphia,  id.  471  ;  2  Dillon,  Mun.  Corp., 
sect.  659.  Levied  only  by  authority  of  the  legislature,  they  can  be 
altered,  postponed,  or  released  at  its  pleasure.  A  repeal  of  the  law, 
under  which  a  tax  is  levied,  at  any  time  before  the  tax  is  collectedj_ 
generally  puts  an  end  to  the  tax,  unless  provision  for  its  continuance  is 
made  in  the  repealing  act,  though  the  tax  may  be  revived  and  enforced' 
by  subsequent  legislation.  We  say  generalh',  for  there  are  some 
exceptions,  where  the  tax  provided  is  so  connected  with  a  contract,  as__ 
the  inducement  for  its  execution,  that  the  courts  will  hold  the  repeal  of 
the  law  to  be  invalid  as  impairing  the  ot)ligation  of  the  contract.     It  is 


MERIWETHER   V.  GARRETT.  61 

not  of  such  taxes,  constituting  the  consideration  of  contracts,  that  we 
are  speaking,  but  of  ordinar}-  taxes  authorized  for  the  sui)port  of  gov- 
ernment, or  to  meet  some  spficloJ  expend i tyre  ;  and  these,   until  eoI-_ 
lected,  — -IbeTng  mere  imposts  of  the  government,  created  and  continuiTig.^ 
only  b}'  tlie  will  of  the  legislature,  —  have  none  of  the    elements  of 
property~wWch -can  be  seized  like  debts  bj'  attachment  or  other  judicial 
process  and  subjected  to  the  payment  of  creditors  of  the  dissolved  c.qi'-_ 
poration.     They  are  in  "no  proper  sense  of  the  term  assets  of  the  cor- 
poration.    The}'  are  only  the  means  provided  for  obtaining  funds  to 
support  its  government  and  pay  its  debts,  and  disappear  as  such  means 
with  the  revocation  of  the  charter,  except  as  the  legislature  may  other- 
wise provide.     When  they  are  collected,  the  mone}'?.  in  the  hands  of  the 
collecting  ofBcer  mav  be  controlled  by  the  process  of  the  courts,  and 
applied  by  their  direction  to  the  uses  for  which  the  taxes  were  levied  ; 
Ijut  until  then  there  is  nothing  in  existence  but  a  law  of  the  State  im- 
posing certain  charges  upon  persons  or  property,  which  the  legislature 
inaj  change,  postpone,  or  release,  at  an}'  time  before  they  are  enforced. 
So  long  as  the  law  authorizing  the  tax  continues  in  force,  the  courtsK 
ma}',    by  mandamus,   compel   the   officers   empowered    to  levy  it   brl  \ 
charged  with  its  collection,  if  unmindful  and  neglectful  in  the  matterJ  I 
to  proceed  and  perform  their  duty  ;  but  when  the  law  is  gone,  and  the  ' 
office  of  the  collector  abolished,  there  is  nothing  upon  which  the  courts 
can  act.     The  courts  cannot  continue  in  force  the  taxes  levied,  nor  levy 
new  taxes  for  the  payment  of  the  debts  of  the  corporation.     The  levy- 
ing of  taxes  is  not  a  judicial  act.     It  has  no  elements  of  one.     It  is  a 
liTgh^act  of  s^ver^r2nty7tb~  He  pei-formed  only  by  the  legislature  upon 
considerations  of  policy,  necessity,  and  the  public  welfare.     In  the  dis- 
tribution of  the  powers  of  government  in  this  country  into  three  depart- 
ments, the  power  of  taxation  falls  to  the  legislative.     It  belongs  to  that 
department  to  determine  what  measures  shall  be  taken  for  the  public 
welfare,  and  to  provide  the  revenues  for  the  support  and  due  adminis- 
tration of  the  government   throughout   the    State  and  in  all  its  sub- 
divisions.     Having  the  sole  power  to  authorize  the  tax.  it  must  equally 
possess  the  sole  power  to  prescribe  the  means  by  which  the  tax  shall  be 
collected,  and  to  designate  the  officers  through  whom  its  will  shall  be 
enforced. 

It  is  the  province  of  the  courts  to  decide  causes  between  parties, 
and,  in  so  doing,  to  construe  the  Constitution  and  the  statutes  of  the  ' 
United  States,  and  of  the  several  States,  and  to  declare  the  law,  and. 
when  their  judgments  are  rendered,  to  enforce  them  by  such  remedies 
as  legislation  has  prescribed,  or  as  are  allowed  by  the  established  prac- 
tice. When  they  go  beyond  this,  they  go  outside  of  their  legitimate 
domain,  and  encroach  upon  the  other  departments  of  the  government ; 
and  all  will  admit  that  a  strict  confinement  of  each  department  within 
its  own  proper  sphere  was  designed  by  the  founders  of  our  government, 
and  is  essential  to  its  successful  administration. 

[After  referring  to  Hees  y.  Watertotcyi,  19  Wallace,  107,  116;  and 


62  MEEIWETHER   V.    GARRETT. 

Heine  v.  Levee  Com'rs  of  New  Orleans,  1  Woods,  247,  and  19  Wal- 
lace, G55.]  These  authorities  —  and  man}-  others  to  the  same  purport 
might  be  cited  —  are  sufficient  to  support  what  we  have  said,  that  the 
power  tojev}:  taxes  is  one  which  belongs  exclusiveh-  to  the  legislative 
department,  and  from  that  it  necessarily  follows  that  tlie  regulation 
and  control  of  all  the  agencies  by  which  taxes  are  collected  must  belong 
to  it. 

When  creditors  are  unable  to  obtain  payment  of  their  judgments 
against  municipal  bodies  by  execution,  the}'  can  proceed  by  vxandamus 
against  the  municipal  authorities  to  compel  them  to  levy  the  necessary 
tax  for  that  purpose,  if  such  authorities  are  clothed  b}-  the  legislature 
with  the  taxing  power,  and  such  tax,  when  collected,  cannot  be  diverted 
to  other  uses  ;  but  if  those  authorities  possess  no  such  power,  or  their 
offices  have  been  abolished  and  the  power  witlidrawn,  the  remedy  of 
the  creditors  is  by  an  appeal  to  the  legislature,  which  alone  can  give 
them  relief.  No  Federal  court,  either  on  its  law  or  equity  side,  has 
any  inherent  jurisdiction  to  lay  a  tax  for  any  purpose,  or  to  enforce  a 
tax  already-  levied,  except  through  the  agencies  provided  by  law. 
However  urgent  the  appeal  of  creditors  and  the  apparent  hopelessness 
of  their  position  witliout  the  aid  of  the  Federal  court,  it  cannot  seize 
the  power  which  belongs  to  the  legislative  department  of  the  State  and 
wield  it  in  their  behalf. 

To  return  to  the  question  propounded  :  what  is  the  property  of  a 
municipal  corporation  which,  on  its  dissolution,  the  courts  can  reach 
and  apply  to  the  payment  of  its  debts  ? 

We  answer,  it  is  the  private  property  of  the  corporation,  that  is,  such 
as  it  held  in  its  own  right  for  profit  or  as  a  source  of  .revenue,  not 
charged  with  anv  public  trust  or  use,  and  funds  in  its  })ussession  unap- 
propriated to  any  specific  purpose.  In  this  respect  the  position  of  the 
extinct  corporation  is  not  dissimilar  to  that  of  a  deceased  individual ;  it 
is  only  such  propertv  as  is  possessed,  freed  from  any  trust,  general  or 
special,  which  can  go  in  liquidation  of  debts. 

The  decree  of  the  Circuit  Court  proceeding  upon  a  diflferent  theor}' 
of  its  control  over  the  uncollected  taxes  of  the  repealed  corporation, 
and  of  the  property  which  could  be  applied  to  the  payment  of  its  debts, 
cannot  be  maintained. 

On  another  ground,  also,  the  decree  is  equally  untenable.  It  adjudges 
that  "  all  the  property  within  the  limits  of  the  territory  of  the  city  of 
Memphis  is  liable,  and  may  be  subjected  to  the  payment  of  all  the 
debts"  for  whicli  the  suits  are  brought,  and  that  "such  liability  shall 
be  enforced  thereafter,  from  time  to  time,  in  such  manner  "  as  the  court 
ma}'  direct. 

In  no  State  of  the  Union,  outside  of  New. England,  does  the  doctrine 
obtain  that  the  private  property  of  individuals  within  the  limits  of  a 
municipal  corporation  can  be  reached  by  its  creditors,  and  suVtjected  to 
the  payment  of  their  demands.  In  Massachusetts  and  Connecticut,  and 
perhaps  in  other  States  in  New  England,  the  individual  liabilitj^f_the^, 


MERIWETHER   V.   GARRETT.  63 

inhabitants  of  tovvnSj  parishes,  and  cities,  for  the  debts  of  the  latter,  ih 
mainiained,  and  exeeuliuns  upon  judgments  issued  against  tlieni  can  be 
enforced  agaTn St  the  private  property  of  the  inhabitants.  But  this  doc- 
Tnne^  is  admitted  by  the  courts  of  those  States  to  be  peculiar  to  their 
jurisprudence,  and  an  exception  to  the  rule  elsewhere  prevailing. 
Elsewhere  tiie  private  property  of  the  inhabitants  of  a  municipal  body 
cannot  be  subjected  to  the  payment  of  its  debts,  except  by  way  of  tax- 
ation ;  but  taxes,  as  we  have  already  said,  can  only  be  levied  by  legisla- 
tive authority.  The  power  of  taxation  is  not  one  of  the  functions  of  the 
judiciary  ;  and  whatever  authority  the  States  may,  under  their  consti- 
tutions, confer  upon  special  tribunals  of  their  own,  the  Federal  courts 
cannot  by  reason  of  it  take  any  additional  powers  which  are  not 
judicial. 

[After  quoting  from  Bees  \.  Watertoion^  19  Wallace,  107,  p.  122.] 

It  is  pressed  upon  us  with  great  earnestness  by  counsel,  that  unless 
the  Federal  courts  come  to  the  aid  of  the  creditors  of  Memphis,  and 
enforce,  through  their  own  officers,  the  taxes  levied  before  the  repeal  of 
its  charter,  they  will  be  remediless.  But  the  conclusion  does  not  follow. 
The  taxes  levied  pursuant  to  writs  of  mandamus  issued  b}'  the  Circuit 
Court  are  still  to  be  collected,  the  agenc}'  onlv  for  their  collection 
being  changed.  The  receiver  appointed  by  the  governor  has  taken  the 
place  of  the  collecting  officers  of  tlie  city.  The  funds  received  by  him 
ujion  the  special  taxes  thus  levied  cannot  be  appropriated  to  any  other 
uses.  The  receiver,  and  anj*  other  agent  of  the  State  for  the  collec- 
tion, can  be  compelled  by  the  court,  equall}-  as  the  former  collecting 
officers  of  the  city,  to  proceed  with  the  collection  of  such  taxes  by  the 
sale  of  propertv  or  by  suit,  or  in  any  other  waj-  authorized  b}'  law,  and 
to  apply  the  proceeds  upon  the  judgments.  If  relief  is  not  thus  afforded 
to  the  creditors,  they  must  appeal  to  the  legislature.  "We  cannot  pre- 
sume that  the  appeal  will  be  in  vain.  We  cannot  sa\'  that  on  a  proper 
representation  they  will  not  receive  favorable  action. 

It  is  certainly  of  the  highest  importance  to  the  people  of  ever^'  State 
that  it  should  make  provision,  not  merely  for  the  payment  of  its  own 
indebtedness,  but  for  the  payment  of  the  indebtedness  of  its  different 
munici[)alities.  Hesitation  to  do  this  is  weakness  ;  refusal  to  do  it  is 
dishonor.  Infidelity  to  engagements  causes  loss  of  character  to  the 
individual ;   it  entails  reproach  upon  tlie  Sti^te.  ; 

The  Federal  judiciary  has  never  failed,  so  far  as  it  was  in  its  power,  ' 
to  compel  the  performance  of  all  lawful  contracts,  whether  of  the  indi- 
vidual, or  of  the  municipality,  or  of  the  State.  It  has  unhesitating!}' 
brushed  aside  all  legislation  of  the  State  impairing  their  obligation. 
When  a  tax  has  been  authorized  by  law  to  meet  them,  it  has  compelled 
the  officers  of  assessment  to  proceed  and  lev}-  the  tax,  and  the  officers 
of  collection  to  proceed  and  collect  it,  and  apply  the  proceeds.  In 
some  instances,  where  the  tax  was  the  inducement  and  consideration  of 
the  contract,  nil  attempts  at  its  repeal  have  been  held  invalid.  But  this 
has  been  the  limit  of  its  power.     It  cannot  make  laws  when  the  State 


64  MOBILE   V.    WATSON. 

refuses  to  pass  them.  It  is  itself  but  the  servant  of  the  law.  If  the 
State  will  not  levy  a  tax,  or  provide  for  one,  the  Federal  judiciary  can- 
not assume  the  legislative  power  of  the  State  and  proceed  to  lew  the 
tax.  If  Jihe  State  has  provided  incompetent  officers  of  collection,  the 
Federal  judiciary-  cannot  remove  them  and  put  others  more  competent 
in  their  place.  If  the  State  appoints  no  officers  of  collection,  the  Fed- 
eral judiciary  cannot  assume  to  itself  that  duty.  It  cannot  take  upon 
itself  to  supplj'  the  defects  and  omissions  of  State  legislation.  It  would 
ill  perform  tlie  duties  assigned  to  it  by  assuming  power  properly  belong- 
ing to  the  legislative  department  of  the  State.  ■  ,   / 

[Mr.  Justice  Strong,  with  whom  concurred  IMr.  Justice  Swayne  and 
Mr.  Justice  Harlan,  delivered  an  opinion  dissenting  from  the  action 
of  the  majority  of  the  court  in  reversing  the  decree  of  the  court  below 
and  ordering  a  dismissal  of  the  complainants'  bill. 

One  of  his  positions  was,  that  the  lev}'  of  a  tax  is  a  veiy  distinct 
thing  from  the  collection  of  a  tax  already  levied.  The  lev}-  is  gener- 
ally a  legislative  or  a  quasi-judicial  act.  The  collection  of  a  tax  after  it 
has  been  levied  is  a  ministerial  act,  which  a  court  has  power  to  enforce. 

His  opinion  concludes  thus  : 

I  think  the  decree  should  be  modified  by  striking  out  so  much  of  it 
as  subjects  to  the  payment  of  the  debts  of  the  city  the  property-  held 
exclusively  for  public  uses,  and  so  much  as  subjects  to  such  payment 
the  private  property  of  all  persons  within  the  city's  territorial  limits 


Thus  modified,  I  think  the  decree  should  be  affirmed.]'^  ^  \\''-^^^'\^\aA^ 

MOBILE  V.  WATSON.  VC^  .S^'^^^-*;^-^' 
MOBILE  V.  UNITED  STATES,  ex  rel.  WATSON.    ,  ^a  "^xt^ 


1886.     116  6^5.289.2  ---»^ 

Error  to  U.  S.  Circuit  Court  for  Southern  District  of  Alabama.  Vla^ 

The  object  of  the  first  of  these  suits  was  the  recover}-  of  a  Judgment  />a/^ 

for  money,  and  of  the  second  the  enforcement,  by  the  writ  of  manda-  jO 

mus,  of  the  judgment  recovered  in  the  first.     They  were  argued  as  one  ^^'^ 


^  In  Luekrman  v.  Taxing  District  of  Shelbj  Count}/,  a.  d.  1879,  2  Lea,  Tenn.  425,  a 
majority  of  the  Supreme  Court  of  Teuuessee  held,  that  the  charter  of  Memphis  had 
beeu  constitutionally  repealed,  and  also  that  the  establishmeut  of  the  Taxing  District 
was  constitutioual.  In  O'Connor  v.  Memphis,  a.  d.  1881,  6  Lea,  Tenn.  730,  (where  scire 
facias  was  issued  requiring  the  Taxing  District  of  Shelby  County  to  show  cause  why 
the  suit  should  not  be  revived  against  it,)  a  majority  of  the  Supreme  Court  of  Teunessee 
held,  "  that  the  Taxing  District  of  Shelby  County  is  so  far  the  successor  of  the  late 
corporation  of  the  city,of  Memphis,  or  the  same  corporation  under  a  new  name,  that 
a  suit  pending  against  the  old  corporation  may  be  revived  against  the  new,  and  pro.se- 
cuted  to  judgment."  The  court  did  not  decide  as  to  the  creditor's  remedy  for  collect 
Ing  his  judgment.  —  Ed. 

^   Statement  abridged.     Argument  and  part  of  opinion  omitted.  —  Ed. 


h 


MOBILE    V.    WATSOX.  bo 

case.  In  the  first  case  Heniy  "Watson,  the  defendant  in  error,  Tvas  the 
plaintiff  in  the  Circuit  Court.  He  brought  his  action  against  the  Port 
of  Mobile  to  recover  the  principal  mone\"  due  on  certain  bonds  issued 
b}'  the  Cit}'  of  Mobile,  under  its  corporate  name.  .  .  . 

B}'  the  act  of  1859,  the  City  of  Mobile  was  authorized  to  issue  bonds 
to  aid  in  the  construction  of  a  railroad  under  sucli  contract  as  the  City 
might  make  with  the  railroad  company,  and  was  vested  with  power  to 
adopt  the  ordinances  necessar\-  to  carry  out  such  contract.     The  City  .'ftcv--*^  ^ 
thereafter  contracted  with  the  railroad  cora[)any  to  issue  tiie  l)ondsofJ  ^^^.-J^" 
the  City,  and  to  annually  provide  a  ceitain  sam  to_bg  n.i)[)lied  to  the  1  (^r^ji^SpS^ 
pa3'ment  thereof  by  a  specTaflax  ;  and  to  pass  an  ordinance  to  accom-  '  /yjrtfiutJc/-' 
iTTTsTTthis  result.    Tlie  City  did  accordingly  pass  an  ordinance  providing       jf^^  W^-^^ 
for  the  annual  lev}-  and  collection  of  such  a  special  tax.     The  bonds  \^ 

now  held  bj'  Watson  were  Issued  to  the  railioad  company,  and  sold  bj' 
it,  upon  the  faith  of  the  act  of  the  legislature  and  the  aforesaid  contract 
and  ordinance  of  the  City  of  Mobile.  .        ,     i^ 

In  1879  the  legislature  repealed  the  charter  of  the  Cit}*  of  Mobile  ;  1  W^'^^I^jn^ 
and  on  the  same  da}'  passed  an  act  incorporating  the  Port  of  Mol)ile.  1    ^'^'^ 
All  ihF  territor}-  included  in  the  Port  of  Mobile  was  embraced  within   QfykX^ 
the  limits  of  the  Cit}'  of  Mobile.     The  area  of  the  Cit\-  comprised  about  I  ^^^^"^  ' ) 
17  square  mfles  ;  and  that  of  the  Port  about  8  square  miles.     All  the  ^v^"*^^ 
thicklv  settled  part  of  the  City  was  included  in  the  Port;  the  excluded      f>^-'*   -    - 
portion  consisting  of  sparsely  settled  suburbs  of  little  value.    Fourteen- 
fifteenths  of  the  inhabitants  of  the  City  were  inhabitants  of  the  Port. 
Out  of  more  than  $16,000,000  of  taxable  property  of  the  City,  all  but 
8900,000  was  included  within  the  limits  of  the  Port. 

Tlie  act  repealing  the  charter  of  tlie  City  provided  for  the  appoint 
ment  of  commissioners,  to  whom   the  City  prgperty  and  claims  should 
be  turned  over ;  and  who  should  api)ry~TTre  proceeds  of  sucrassets  to 
the  payment  of  debts  of  the  City,  the  floating  debt  to  be  paid  first 
The  act  expressl}'  declared  that  the  commissioners   should  have  no 
power  to  levy  any  tax.     By  a  subsequent  act  the  commissioners  of  the 
City  were  required  to  turn  over  to  the  officials  of  the  Port  all  the  real 
and  personal  property  formerly  held  by  the  Cit}-  "  for  public  use  and 
governmental  purposes,"  except  only  the  wharves.     It  was   not  pre- 
tended tliat  payment  could  or  would  be  made  to  the  bondholders  out 
of  the  assets  of  the  City  in  the  hands  of  the  commissioners.     The  act 
incorporating  the  Port  of  Mobile  provided  for  a  Police  Board,  empow- 
ered to  levy  and  collect  taxes  to  a  limited  amount,  for  the  purpose  of  1 '\i>''*-f  ^^ 
defraying  the  expenses  of  carrying  out  the  provisions  of  the  act.     By  li 
a   subsequent   act  it  was   expressly   pi'ovided  that  the  Police  Board 
should  not  lev}-  any  other  tax  than  the  one  authorized   by  the  pre- 
ceding act.  ^ 

Plaintiff,  "Watson,  recovered  judgment  against  the  Port  of  Mobile.  Pr-v-^^^^ 
Execution  was  issued,  and  returned  "  no  property  found."     Watson 
then  filed  a  petition,  praying  for  a  writ  of  mandamus,  to  compel  the  ^w^-f 


66 


MOBILE    V.    •U'ATSOX. 


Port  of  Mobile  and  its  officers  charged  with  the  levying  and  collection 

of  taxes  to  assess,  levy,  and  collect  a  special  tax  for  the  payment  of 

the  judgment. 

The  court  ordered  the  writ  to  issue  against  tlie  Port  of  Mobile  and 

the  Police  ,3Qaxd.  "  '  "'~ 

The  original  judgment  against  the  Port  of  Mobile,  and  the  judgment 

rendered  upon  the  petition  for  mandamus,  were  both  brought  up  for 

review  by  the  writ  of  error  sued  out  by  the  Port  of  Mobile. 

Udnnis  Taylor  and  J.  Little  Smith  {Braxton  Bragg  with  them), 

for  plaintiff  in  error. 
A  Gaylord  B.  Clark  and  James  E.  Webb,  for  defendants  in  error. 

■^  y»^'>       I     Woods,  J.     [After  stating  the  case.]     We  are  of  opinion,  upon  this 
O^  /state  of  the  statutes  and  facts,  that  the  Port  of  Mobile  is  the  legaT^ic^ 

ijL*-v  ^         I  cessor  of  the  City  of  Mobile,  and  liable  for  its  debts.     The  two  corpo~ 
"TZ^^P^  rations  were  composed  of  substantially  the  same  communit}',  included 
*L'^    \  within  their  limits  substantiallv  the  same  taxable  propertv,  and  were 


organized  for 


the  same  general 


purposes. 


w>* 


r- 


Where  the  legislature  of  a  State  has  given  a  local  communitv,  living 
within  designated  boundaries,  a  municipal  organization,  and  1)3'  a  sub- 
sequent act  or  series  of  acts  repeals  its  charter  and  dissolves  the  corpo- 
ration, and  incorporates  substantially  the  same  people  as  a  municipal 
body  under  a  new  name  for  the  same  general  purpose,  and  the  great 
mass  of  the  taxable  propert}'  of  the  old  corporation  is  included  witliin 
the  limits  of  the  new,  and  the  property  of  the  old  corporation  used  for 
public  purposes  is  transferred  without  consideration  to  the  new  cor- 

Iporation  for  the  same  public  uses,  the  latter,  notwithstanding  a  great 
reduction  of  its  corporate  limits,  is  the  successor  in  law  of  the  former, 
and  liable  for  its  debts  ;  and  if  any  part  of  the  creditors  of  the  old 
corporation  are  left  without  provision  for  the  payment  of  their  claims, 
they  can  enforce  satisfaction  out  of  the  new.  In  illustration  and  sup- 
port of  this  proposition,  the  following  cases  are  in  point : 

In  Girard  V.  Philadelphia^  7  Wall.  1,  it  was  held  hy  this  court  that 
the  annexation  to  the  Citv  of  Philadelphia,  having  a  territory  of  only 
two  square  miles,  of  twent3"-eight  other  municipalities  with  all  their 
nhabitants,  comprising  districts,  boroughs,  and  townships  of  variou.s 
territorial  extent,  and  the  (ihangbig^  of  its  name,  did  not  destro}'  its 
identity  or  impair  its  right  to  hold  propert}'  devised  to  it. 

So  in  Bronr/hton  v.  Pensacola,  93  U.  S.  266,  270,  it  was  said  by 
Mr.  Justice  Field,  in  delivering  judgment,  that  when  "a  new  form  is 
given  to  an  old  corporation,  or  such  a  corporation  is  reorganized  under 
a  new  charter,  taking  in  its  new  organization  the  place  of  the  old  one, 
lerabracing  substantiall}'  the  same  corporators  and  the  same  territory, 
"it  wirTTTe  presumed  that  the  legislature  intended  a  continued  existence 
of  the  same  corporation,  although  different  powers  are  possessedTIhder" 
the  hew  charter  and  different  officers  administer  its  affairs,  and  in  the 
absence  of  express  provision  for  their  payment  otherwise,  it  will  also 
be  presumed  in  such  case  that  the  legislature  intended  that  the  liabili- 


^J 


'C^^ 


9^ 


p .  ^  JM-'^v  .-A  V  ^^^^^^'w^^Wv 


I.  J 


ct>. 


MOBILE   V.    WATSON. 


67 


9-<V--4^ 


QJOtuc 


ties  as  well  as  the  lights  of  property  of  the  corporation  in  its  old  form 
should  accompany  the  corporation  in  its  reorganization." 

In  O'Connors.  Memphis^  6  Lea,  730,  the  Supreme  Court  of  Ten-  '"i»,Jl,.^jc 
nessee  went  so  far  as  to  sav  tliat —  "NeithePthe  repeal  of  the  charter  Qt<I!!«>^ 
of  a  municipal  corporatioiv^or  a  change  of  its  name,  nor  an  increase^^^^^^"**"*^  \ 
or  dimhaution  of  its  territory  or  population,  nor  a  change  in  its  mode  jr^'^'i^^ 
of  government,  nor  all  of  these  combined,  will  destroy  the  identity,  ^^jl^^^^I 
continuity,  or  succession  of  the  corporation  if  the  people  and  territory  oxTsir-!^ 
reincorporated  constitute  an  integral  part  of  the  corporation  abolished.  -  '^ 
.  .  .  The  corporators  and  the  territory  are  the  essential  constituents  of 
the  corporation,  and  its  rights  and  liabilities  naturally  adhere  to  them." 

In  31ount  Pleasant  v.  £eckwith,  100  U.  S.  514,  a  municipal  corpo- 
ration'^Had^Hbeen  dissolved  and  its  territor}'  divided  between  and  an- 
nexed to  three  adjacent  corporations.  Upon  this  state  of  facts  the 
court  held  that,  unless  the  legislature  otherwise  provided,  the  corpora- 
tions to  which  the  territory  and  the  inhabitants  of  the  divided  corpora- 
tion had  been  transferred,  were  severally  liable  for  their  proportionate 
share  of  its  debts,  and  were  vested  with  its  power  to  raise  revenue 
wherewith  to  pay  them  b}-  levying  taxes  upon  the  propertj'  transferred 
and  the  persons  residing  therein.     See  also  Colchester  v.  Seaber,  3 


Cuddon 


Eastwick.,  1  Salk.  192  ;  People  v.  Morris^ 
Railroad  Co.  v.  City  of  New  Orleans, 


Burrow,  1866 

13  Wend.  325  ;  New  Orleans 

26  La.  Ann.  478. 

[After  referring  to  Amy  v.  ^eZma,  recentl}'  decided  by  the  Supreme 
Court  of  Alabama.]  ^ 

This  construction  of  these  statutes  of  the  State  of  Alabama  b}'  its 
highest  court  being  in  accord  with  our  own  views,  and  in  harmony 
with  former  decisions  of  this  court  on  the  same  general  subject,  is 
decisive  of  the  question  in  hand,  unless  there  is  some  matei'ial  differ- 
ence between  the  legislation  concerning  the  City  of  Selma  and  that 
concerning  the  City  of  Mobile.  The  onl3'  difference  that  can  be  sup- 
posed to  have  an}'  bearing  upon  the  question  under  discussion  is,  that 
the  act  incorporating  Selma  embraced  the  same  territorj'  as  that  cov- 
ered by  the  City  of  Selma,  whereas  the  Port  of  Mobile  covered  little 
more  than  half  the  territory  embraced  b}'  the  City  of  Mobile.  We 
think  this  difference  between  the  two  cases  is  an  immaterial  one.  The 
Supreme  Court  of  Alabama,  in  the  case  of  the  Mobile  and  Spring  Hill 
Railroad  Co.  v.  Kennerly,  74  Ala.  566,  assumed  that  the  City  of  Mo- 
bile and  the  Port  of  Mobile  had  substantially-  the  same  corporators  and 
the  same  boundaries.  And  we  are  of  opinion  that  the  exclusion  from 
the  limits  of  the  Port  of  Mobile  of  the  sparsely  settled  suburbs  of  the 
City  of  Mobile,  a  territor}'  of  little  value,  as  fairly  appears  by  the 
record,  and  consisting,  as  stated  by  the  counsel  for  plaintiff,  without 
contradiction,  largely  of  fields,  swamps  and  land  covered  with  water, 
will  not  serve  to  distinguish  this  case  from  the  case  of  Ajny  v.  S'byia. 
We  repeat,  therefore,  that  in  our  judgment  the  Port  of  Mobile  is  the 
legal  successor  of  the  City  of  Mobile,  and  bound  for  its  debts. 


(UM 


'  x^-^  >v>-^^    ^"^^^  -"?  1)AlJLiljyw*"<'^V'^^t.vC-> 


68  MOBILE    V.   WATSON. 

It  follows  from  this  proposition  that  the  remedies  necessary  to  ttie 

collection  of  his  debt,  which  the  law  gave  the  creditor  of  the  City  of 

Mobile,  remain  in  force  against  the  Port  of  Mobile,     The  laws  which 

—   k^ establish  local  municipal  corporations  cannot  be  altered  or  repealed  so 

'•wo'*^''^*^  as  to  invade  the  constitutional  rights  of  creditors.     So  far  as  such  cor- 

^  >  porations  are  invested  with  subordinate   legislative  powers  for  local 

*  purposes,  they  are  the  mere  instrumentalities  of  the  States,  for  the 

ti^U^^^      convenient  administration  of  their  affairs,  and  are  subject  to  legislative 

^  *  (/M^    control.     But  when   empowered  to  take  stock  in  or  otherwise   aid  a 

-<;^^  railroad  company,  and  they  issue  their  bonds  in  payment  of  the  stock 

■^-*       Jiy^    taken,  or  to  carry  out  any  other  authorized  contract  in  aid  of  the  rail- 

v/V"*'j!r^        road  compan}-,  they  are  to  that  extent  to  be  deemed  private  corpora- 

VjU-'V^       tions,  and  their  obligations  are  secured  bj-  all   the  guarantees  which 

^  protect  the  engagements  of  private  individuals.     Broughton  v.  Pensa- 

cola,  93  U.  S.  266  ;  Mount  Pleasant  v.  Beckwith,  100  U.  S.  514. 

Therefore  the  remedies  for  the  enforcement  of  such  obliarations  as- 
sumed  by  a  municipal  corporation,  which  existed  when  the  contract 
wa^  made,  must  be  left  unimpaired  b}'  the  legislature,  or,  if  they  are 
clianged,  a  snbg^^tia.l  eqiiivalent  must  be  provided.  Where  the  re- 
;tfeiOurce  for  the  pa3'ment  of  the  bonds  of  a  municipal  corporation  is  the 
ower  of  taxation  existing  when  the  bonds  were  issued,  any  law  which 
ithdraws  or  limits  the  taxing  power  and  leaves  no  adequate  means  for 
•^^9  ^  the  payment  of  the  bonds  is  forbidden  by  the  Constitution  of  the 
^'ty^*  United  States,  and  is  null  and  void.  Von  Hoffman  v.  Quincy.  4  Wall. 
sr^^ji^**^ '  535  ;  Edwards  v.  Kearzey,  96  U.  S.  595;  Palls  County  Court  v. 
,*■  ^  United  States^  105  U.  S.  733  ;  Louisiana  v.  Pillsbury,  105  U.  S.  278  ; 

'^Oi  Ponisiana  v.  Mayor  of  New  Orleans^  109  U.  S.  285.     Tliese  proposi- 

tions receive  strong  support  from  the  decisions  of  the  Supreme  Court 
of  Alabama.     Commissioners  of  Limestone  County  v.  Pather,  48  Ala. 
433  ;  Edwards  v.  Williamson,  70  Ala.  145  ;  Slaughter  v.  Mobile  County, 
j^^    73  Ala.  134. 
JJTvIa^'^*^        It  follows  that  the  contract  by  which,  under  authority  of  the  legisla- 
l^^J^^*y>       ture,  the  City  of  Mobile  agreed  to  levy  a  special  tax  for  the  payment 
JJ^'U^((^^^   ofthe  principal  and  interest  of  the  class  of  bonds  to  which  those  held 

jt  \  ^y  the  plaintiff  belong  is  still  in  force,  and  its  obligation  rests  upon  its  " 

yv^  '.  legal  successor,  the  Port  of  IMoImIc. 

'^     'jyf'^        All  laws  passed  since  the  making  of  the  contract,  whose  purpose  or 
A^^^      effect  is  to  take  from  the  City  of  Mobile,  or  its  successor,  the  power  to 
<-■'  '^---'^      levy  the  tax  and  pay  the  bonds,  are  invalid  and  ineffectual,  and  will  be 
J%'   disi-egarded.     Mr.  Justice  Field,  when  delivering  the  judgment  of  this 
court  in  Wolff  \.  New  Orleans,  103  U.  S.  358,  368,  said  :  "  Tlie  courts, 
therefore,  treating  as  invalid  and  void  the  legislation  abrogating  or  re- 
stricting the  power  of  taxation  delegated  to  the  municipality,  upon  the 
faith  of  which  contracts  were  made  with  her  and  upon  the  continuance  ~ 
of  which  alone  they  can  be  enforced,  can  proceed,  and  by  maiidajnus 
compel,  at  the  instance  of  the  parties  interested,  the  exercise  of  that 
power,  as  if  no  such  legislation  had  ever  been  attempted."     And  so  in 

^^.^^\^^\^,.^^^^  ^ 


SHAPLEIGH   V.   CITY   OF   SAN   ANGELO.  69 

Malls  Count)/  Court  v.  United  States,  105  U.  S.  733,  738,  it  was  said 
by  the  Chief  Justice,  speaking  for  the  court,  that  "all  laws  of  the 
State  which  have  been  passed  since  the  bonds  in  question  were  issued, 
purporting  to  take  away  froni  the  county  courts  the  power  to  lev}' 
taxes  necessary  to  meet  the  payments,  are  invalid,  and,  under  the  well 
settled  rule  of  decision  in  this  court,  the  Circuit  Court  had  authoritj', 
bj'  mandamus,  to  require  the  Count}'  Court  to  do  all  the  law,  when  the 
bonds  were  issued,  required  it  to  do  to  raise  the  means  to  pay  the  judg- 
ment, or  something  substantiall}'  equivalent."  a    A\j.jo-.~ 

The  Port  of  Mobilehas  the  machiner}-  and  ot'ticers  requisite  for  theW'^""'^  >j 
assessment  ofproperty  and  for  the  levy  and  collection  of  taxes  to  carry  J  .  *^ 
on  the  City  government.  There  is  no  reason  why  the  taxes  neecss^ary « f^dC^^^lP^ 
to  pay  the  judgment  of  the  plaintiff  cannot  be  levied  and  collected  b}'  ^\^  /s^vv-i 
the  same  officers.  There  is  no  obstacle  to  the  full  and  complete  per-^'Ti  A 
formance  by  the  Port  of  Mobile  and  the  Mobile  Police  Board  of  the  ^jT^ 
duties  required  by  the  peremptory  writ  of  mandamus  issued  by  the  '^vtv^'^ 
Circuit  Court.  /  i  "\  vi\ 

It  follows  from  the  views  we  have  expressed  that  the  judgment  of  •- 
the  Circuit  Court  in  favor  of  the  plaintiff  for  $7308.80  and  costs  against 
the  Port  of  Mobile,  and  the  judgment  directing  the  peremptory  writ  of 
mandamiis-to  be  issued  against_the^;ort_of  Mobile  and  the  Mobile  Po- 
tice  Board  for  the  satisfaction  of  such  judgment,  are  botlTwarranted 
by  law.  ^^-r"^  Judgments  affirmed} 


.^ jX^^J^K^SHAPLEIGH   V.   CITY  OF   SAN  ANGELO 

<^  ^x>^     «X^  ■   '  1897.     167  U.  S.  646.2 

^O^^'^RROR  to  U.  S.  Circuit  Court  for  Western  District  of  Texas, 
^^^^^.w-  Action  against  the  cit}*  of  San  Angelo,  a  city  incorporated  Feb.  10, 
1892,  under  the  laws  of  the  State  of  Texas.  Plaintiff  seeks  to  recover 
for  the  amount  of  certain  unpaid  coupons  for  interest  on  bonds  issued 
by  a  municipal  organization,  styled  "the  city  of  San  Angelo,"  which, 
from  Januar}'- 18,  1889,  to  Dec.  15.  1891,  exercised  the  powers  of  an 
incorporated  cit}'  within  territorial  limits  including  all  the  territory 
afterwards  embraced  within  the  limits  of  the  defendant  corporation; 
and  claiming  to  have  been  incorporated  by  certain  entries  made  Jan. 
18,  1889,  upon  the  records  of  the  commissioner's  court  of  Tom  Green 

1  "In  Devcraiixv.  Citi/  of  BrownsrUle,  29  Fed.  Rep.  742,  the  rulinjT  in  ^Fohih  v.  Wat- 
son, supra,  was  followed  and  extended,  it  being  declared  not  only  that  the  succeeding 
corporation  was  liable  for  the  existing  debts  of  its  predecessor,  but  that  all  the  powers 
of  taxation  225.^.2?.*'®^^  ^y  ^^^^^  predecessor,  which  had  been  conferred  as  a  part  of  the 
remedy  to  which  its  creditors  were  entitled,  survived  to  the  new  corporation,  and  that 
their~ex'ercise  could  b^  compelled  by  mandamus.  It  was  also  held  that  statutes  which 
protiibitea  tne  exercise  of  these  powers  of  taxation  were  void,  as  impairing  the  obli. 
gation  of  contracts."  1  Dillon's  Man.  Corp.,  4th  ed.,  page  250,  note  2.  —  Ed. 
"^'Statement  abridged.     Portions  of  opinion  omitted. — Ed. 

'J 


» 


70  SHAPLEIGH   V.    CITY   OF    SAN   ANGELO. 

County.     Other  material  facts  are  stated  in  the  opinion.     The  Circuit 
Court  gave  judgment  for  the  defendant. 

T.  K.  SJcmker,  for  plaintiff  in  error. 

No  appearance  for  defendant  in  error. 

Shiras,  J.  in  January,  1889,  the  cit}'  of  San  Angelo  was  existing 
and  acting  as  an  organized  municipal  corporation,  with  a  mayor,  a 
board  of  aldermen  and  other  functionaries.  In  pursuance  of  an  ordinance 
of  the  city  council  in  May,  1889,  there  were  issued  the  bonds  in  question 
in  this  case.  It  was  not  denied  that  the  proceedings  were  regular  in 
form,  that  the  bonds  were  duly  executed  and  registered  as  required  by 
law,  that  tlie  proceeds  of  their  sale  were  properh-  applied  to  improv:_ 
ing  the  streets  and  public  highways  of  the  cit}',  and  that  the  plaintiff 
was  a  bond  fide  holder  for  value. 

As  things  then  stood,  it  is  plain  that  the  city  could  not  have  set  up 
to  defeat  its  obligations  any  supposed  irregularity  or  illegality  in  its 
organization.  The  State,  being  the  creator  of  municipal  corporations, 
is  the  proper  party  to  impeach  the  validity  of  their  creation.  If  the 
State  acquiesces  in  the  validity  of  a  municipal  corporation,  its  corporate 
existence  cannot  be  coUaterall}'  attacked. 

This  is  the  general  rule,  and  it  is  recognized  in  Texas  :  "  If  a  munic- 
ipalit}'  has  been  illegalh'  constituted,  the  State  alone  can  take  advan- 
tage of  the  fact  in  a  proper  proceeding  instituted  for  the  purpose  of 
testing  the  validity  of  its  charter."      Graham  v.  City  of  Greenville^  67 « 
Texas,  62. 

But,  in  1890,  at  the  fall  term  of  the  district  court  of  Tom  Green 
Count}',  an  information  was  filed  by  the  county  attorney  against  named 
persons,  who  were  exercising  and  performing  the  duties,  privileges  and 
functions  of  a  mayor  and  city  council  of  tlie  city  of  San  Angelo,  claim- 
ing the  same  to  be  a  city  dul}'  and  legally  incorporated  under  the  laws 
of  the  State,  and  alleging  that  said  city  was  not  legall}'  incorporated, 
and  that  said  named  persons  were  unlawfully  exercising  said  functions. 
Such  proceedings  were  had  that  on  December  15,  1891,  the  said  district 
court  entered  a  decree  ousting  the  said  persons  from  their  said  offlces, 
and  adjudging  that  the  incorporation  of  said  cit}'  of  San  Angelo  be,  and 
the  same  was  thereby,  abolished  and  declared  to  be  null  and  void.  The 
record  does  not  distinctly  disclose  the  ground  upon  which  the  court  pro- 
ceeded in  disincorporating  said  city,  but  enough  appears  to  justify  the 
inference  that  the  incorporation  included  within  its  limits  unimproved 
pasture  lands,  outside  of  the  territory  actually  inhabited,  and  that  the 
incorporation  was  declared  invalid  for  that  reason.  — — — .^ 

Subsequently,  on  February  10,  1892,  the  city  of  San  Angelo  was 
again  incorporated,  excluding  the  unimproved  lands,  but  including  all 
the  improved  part  of  the  prior  incorporation,  and  in  which  existed  the 
streets  and  highways  in  the  construction  of  which  the  proceeds  of  the 
said  bonds  had  been  expended. 

"What  was  the  legal  effect  of  the  disincorporation  of  the  city  of  San 
Angelo  and  of  its  subsequent  reincorporation  as  respects  the  bonds  in 

-e<c^^^  j:5>  \^  c^-V^T  / ... .  --    .  J.    '  ,^^,        -^--a] 


SHAPLEIGH   V.   CITY   OF    SAN   ANGELO.  71 

suit?  Did  the  decree  of  the  district  court  of  Tom  Green  Count}', 
abolishing  the  city  of  San  Angelo  as  incorporated  in  18b9,  operate  to 
render  its  incor^wration  void  ad  initio,  and  to  nullify  all  its  debts  and 
obligations  created  while  its  validity  was  unchallenged?  Or  can  it  be 
held,  consistenth'  with  legal  principles,  tliat  the  abolition  of  the  city 
government,  as  at  first  organized,  because  of  some  disregard  of  law, 
and  its  reconstruction  so  as  to  include  within  its  .limits  the  public 
improvements  for  which  bonds  had  been  issued  during  the  first  organi- 
zation, devolved  upon  the  city  so  reorganized  the  obligations  that  would 
have  attached  to  the  original  city  if  the  State  had  continued  to  acquiesce 
in  the  validity  of  its  incorporation? 

[After  referring  to  Broughton  v.  Pensacola,  93  U.  S.  266  ;  Mount 
Pleasant  v.  Beckioith,  100  U.  S.  520  ;  and  Mobile  v.  Watson,  116  U.  S. 
289:] 

The  conclusions  reached  by  this  court  maj'  be  thus  expressed : 
The  State's  plenary  power  over  its  municipal  corporations  to  change 
their  organization,  to  modify  their  method  of  internal  government,  or  to 
abolish  them  altogether,  is  not  restricted  b}'  contracts  entered  into  by 
the  municipality  with  its  creditors  or  with  private  pai'ties.  An  absolute 
repeal  of  a  municipal  charter  is  therefore  ert'ectual  so  far  as  it  abolishes 
the  old  corporate  organization  ;  but  when  the  same  or  substantially  the 
same  inhabitants  are  erected  into  a  new  corporation,  whether  with 
extended  or  restricted  territorial  limits,  such  new  corporation  is  treated 
as  in  law  the  successor  of  the  old  one,  entitled  to  its  property  rights, 
and  subject  to  its  liabilities.     Dillon's  Mun.  Corp.  vol.  1,  §  172,  4th  ed. 

This  view  of  the  law  has  been  accepted  and  followed  by  the  Supreme 
Court  of  the  State  of  Texas.  [Citing  and  stating  3Iorris  v.  State,  62 
Texas,  728,  730.] 

The  conclusion  which  is  derivable  from  the  authorities  cited,  and  from 
the  principles  therein  established,  is  that  the  disincorporation  b}-  legal 
proceedings  of  the  cit}-  of  San  Angelo  did  nof  avoid  legall}-  subsisting 
contracts,  and  that  upon  the  reincorporation  of  the  same  inhabitants 
and  of  a  territory  inclusive  of  the  improvements  made  under  such  con- 
tracts,  tlie  obligation  of  the  old  devolved  upon  the  new  corporation. 
"~Th6"dOctrine  successfully  invoked  in  the  court  below  by  the  defendant, 
that  where  a  municipal  incorporation  is  wholly  void  ah  initio,  as  being 
created  without  warrant  of  law,  it  could  create  no  debts  and  could  incur 
no  liabilities,  does  not,  in  our  opinion,  apply  to  the  case  of  an  irregularly 
organized  corporation,  which  had  obtained,  by  compliance  with  a  gen- 
eral law  authorizing  the  formation  of  municipal  corporations,  an  organ- 
ization valid  r.s  against  everybody,  except  the  State  acting  by  direct 
proceedings.  Such  an  organization  is  merelj"  voidable,  and  if  the  State  p*-^"*^ 
refrains  from  acting  until  after  debts  are  created,  the  obrig-iUions  are 
not  (lestroye JlSyTrnTssoTulion  of  tlie  corporation,  but  it  will  be  presumed 
that  the'State  intended  that  they  should  be  devolved  upon  tlic  new  cor- 
"pora'lion  which  succeeded,  by  operation  of  law,  to  the  property  and 
improvements  of  its  predecessor.     [The  court  tlieii  consicTered  tlfe legal 

^Cn-n       i'"il^i      ur^^-*v<     Kieji5.,lJ9.     y<?CAyv     GlJ-v 


-72         '  PEOPLE   EX   REL.   GAUEN   V.   NIEBEUEGGE- 

-  s, 

effect  of  the  Texas  statute  of  April  13,  1891  ;  which  the  Texas  court 
has  construed  as  requiring  a  vote  of  the  taxpaying  voters  in  favor  of 
assuming  the  debt  before  the  new  incorporation  can  be  held  for  it.] 

.  .  .  Said  act  so  construed  must  be  regarded,  as  respects  prior  cases, 
as  an  act  impairing  the  obligations  of  existing  contracts.  If  the  law, 
1  before  the  passage  of  the  act  of  1891,  was  that,  b\-  a  voluntar}'  reincor- 
poration and  a  taking  over  of  the  property  rights  of  the  old  corporation, 
the  existing  obligations  devolved  upon  the  new  corporation,  it  would 
plainlj'  not  be  a  legitimate  exercise  of  legislative  power,  as  affecting 
such  prior  obligations,  to  substitute  an  obligation  contingent  upon  a 
vote  of  the  taxpajers. 

When  we  hold  that  the  new  corporation,  under  the  facts  disclosed  by 
this  record,  is  subject  to  the  obligations  of  the  preceding  corporation, 
we  mean  subject  to  them  as  existing  legal  obligations,  in  manner  and 
form  as  they  would  have  been  enforceable  had  there  been  no  change  of 
organization. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  is 
remanded  for  further  proceedings  not  inconsistent  with  this 
opi?iion. 


-\ 


^J5^ 


PEOPLE  ET  REL.  GAUEN  v.   NIEBRUEGGE. 

1910.    244  ///.  82. 

Carter,  J.^  This  was  an  information  in  the  nature  of  quo  zcarranto 
filed  by  the  State's  attorney  of  jNIonroe  county  in  the  circuit  court  of 
said  county  on  March  11,  1909,  at  the  request  of  nine  owners  of  land, 
questioning  the  legality  of  the  organization  and  existence  of  Moredock 
and  Ivy  Landing  Drainage  District  No.  1  of  Monroe  County,  Illinois, 
and  right  of  the  defendants  in  error,  Henry  Niebruegge,  AYilliam  Feld- 
meier,  Sr.,  and  John  Herbst,  to  hold  the  ctlice  of  drainage  commissioners 
of  said  district.  Defendants  in  error  entered  their  appearance  and  filed 
a  plea  to  the  information,  to  which  plea  plaintiff  in  error  demurred.  The 
demurrer  was  overruled  and  plaintiff  in  error  elected  to  abide  by  his 
demurrer  and  declined  to  plead  further.  Thereupon  the  trial  court  en- 
tered judgment  in  favor  of  defendants  in  error,  finding  that  they  were 
not  guilty  of  usurping  the  office  of  drainage  commissioners,  as  charged 
in  the  information.  Plaintiff  in  error  has  sued  out  of  this  court  a  writ 
of  error  to  review  the  judgment. 

It  is  next  insisted  that  the  rights  and  franchises  of  this  district  were 
dormant  for  many  years,  and  that  on  that  account  a  dissolution  of  the 
corporation  should  be  declared  and  its  charter  forfeited.  It  appears 
from  the  facts  set  up  in  the  plea  that  the  district  was  in  active  opera- 

1  Part  of  thejopinion  only  is  given.  —  Ed.  ^ 

Vvj^v  ..^  ^^->  -j^x  ^  .  <,.  ^  ^S'^  I. 


PEOPLE   EX   EEL.    GAUEN   V.   NIEBRUEGGE.  73 


WC 


tion  from  1882  to  1897.     At  the  last  mentioned  date  three  commission- 
ers were  acting.     No  annual  reports  were  made  by  the  commissioners 
thereafter  until  1908.     From  the  record  of  proceedings  in  tlie  county 
court  as  to  this  district,  as  set  out  in  said  plea,  it  is  not  entirely  clear  |V^  *^ 
whether  any  commissioners  were  appointed  by  the  court  from   1897  \'''      j'' 
until  1908.     In  September  of  the  year  1908  a  petition  was  filed  in  the    '^\^   i 
county  court  of  Monroe  County,  signed  by  twenty-seven  land  owners  of 
said  district,  requesting  the  court  to  appoint  three  persons  as  drainage 
commissioners.     After  a  heariug  on  this  question  the  court  appointed 
the  three  defendants  in  error. 

It  has  been  held  by  this  court  that  drainage  districts  should  be 
classed  as  municipal  corporations.     Commissioners  of  Drainage  Dis- 
trict v.  Kelsey^  120  111.  482;  Elmore  v.  Drainage  Commissioners,  135 
id.  269;  Badger  x.  Inlet  Drainage  District,  141  id.  540.    In  Dillon  ou/  /Kq^.^ 
Municipal  Corporations  (vol.  1,  4th  ed.  sec.  168,  p.  245),  that  author  W  ji* 

states  that  the  doctrine  of  forfeiture  of  the  right  to  be  a  corporation    "^i/^ — v^ 
has  no  just  or  proper  application  to  municipal  corporations,  and  "  if     ^  j 

they  neglect  to  use  powers  in  which  the  public  or  individuals  have  an 
interest,  and  the  exercise  of  such  powers  be  not  discretionary,  the  ^*'  . 
courts  will  interfere  and  compel  them  to  do  their  duty.  On  the  other  ^  \^ 
hand,  acts  done  beyond  the  powers  granted  are  void.  ...  In  short,  J^  ^ 
unless  otherwise  specially  provided  by  the  legislature,  the  nature  and 
constitution  of  our  municipal  corporations,  as  well  as  the  purposes  they 
are  created  to  subserve,  are  such  that  they  can,  in  the  author's  judg- 
ment, only  be  dissolved  by  the  legislature  or  pursuant  to  legislative 
enactment.  They  may  become  inert  or  dormant,  or  their  functions 
may  be  suspended  for  want  of  ofHcers  or  of  inhabitants  ;  but  dissolved, 
when  created  by  an  act  of  the  legislature  and  once  in  existence,  they 
cannot  be  by  reason  of  any  default  or  abuse  of  the  powers  conferred, 
either  on  the  part  of  officers  or  inhabitants  of  the  incorporated  place. 
Asthey  can  exist  only  by  legislative  sanction,  so  they  cannot  be  dis- 
solved or  cease  to  exist  except  by  legislative  consent  or  pursuant  to 
legislative  provision."     Municipal  corporations  can  cease  to  exist  only  ^^ 

by  legislative  consent  or  pursuant  to  legislative  provision,  and  a  fail-i'^'^^  ^^ 
ure^r  a  term  of  years  to  exercise  the  functions  of  a  municipality  doesl ''^'^^ 
not  effect  a  dissolution.      C'o'n   v.   Brown,  111   Mich.    657;    State  v.        t-'^'^' 
"Stevens,  21  Kan.  210.     A  public  corporation  is  not  dissolved  by  fail- 
ure to  elect  officers.     People  v.   Wren,  4   Scam.  269;    President  and 
Trustees  v.  Thompson,  20  111.  197;  People  v.  Town  of  Fairhury,  51  id. 
149  ;  School  Directors  v.  School  Directors,   135  id.  464 ;   1  Smith  ou 
Corp.,   1903  ed.,  sec.  479,   p.  446.     Municipal  corporations  are  sub- 
ject to  legislative  control,  and  may  be  changed,  modified,  restrained  or 
abolished  to  suit  the  exigencies  of  the  case.      City  of  Cldcago  v.  Town  tn      ^ 
of  Cicero,  210  111.  290,  and  cases  cited.     While  drainage  districts  may  p^^'^^V^ 
not^p  Rtiint.ly  iTinni<-ipnl  foi-i^nrtjiiti^JDS..  thev  are  public  cor|)oratioas.  i  '^" -T^^ - 
JPeople  V.  Anderson,  239  111.  266;  People  y.  Hepler,  240  id.  196)  organ-  '  {^^"^^"'^^ 
ized  for  a  special  and  limited  purpose.     Elmore  v.  Drainage  Comrs., 


I   „ 


74 


CHALSTRAN  V.   BOARD  OF  EDUCATION. 


supi'a.  They  are  created  by  the  statute,  and  we  think,  on  reason,  and 
authority,  the  rules  of  law  governing  the  dissolution  of  municipal  cor- 
porations must  be  held  to  apply  to  drainage  districts. 

In  1889  an  act  was  passed  authorizing  the  dissolution  of  any  drain- 
age district  by  order  of  the  county  court  of  the  county  wherein  the 
same  was  organized,  upon  a  hearing  upon  a  verified  petition  signed  by 
not  less  than  four-fifths  of  the  adult  land  owners  of  such  district,  own- 
ins:  not  less  than  three-fourths  of  the  assessed  land.  Hurd's  Stat. 
1908,  par.  191,  p.  876.  We  think  it  is  obvious,  not  only  from  the  au- 
thorities on  this  subject  but  from  the  provisions  of  the  Levee  act  and 
of  the  act  just  referred  to,  that  the  legislature  did  not  intend  that  the 
district  should  be  dissolved  except  in~tEe  ir, a \ . n c F" pro vid ecl~By  th e  s aid 
act  of  1889.  It  is  not  claimed  that  any  attempt  has  been  made,  under 
said  provision  of  the  statute,  to  dissolve  this  district.  It  is  further 
provided  in  section  1  of  the  act  for  the  dissolution  of  drainage  dis- 
tricts that  they  can  be  dissolved  only  when  "  no  indebtedness  of  such 
district  exists."  The  plea  filed  in  the  court  below  stated  that  the  aggre- 
gate sum  collected  for  the  execution  of  drainage  work  was  $31,537.79; 
and  that  there  had  been  expended  for  the  work  the  aggregate  sum  of 
$41,000,  and  that  to  secure  the  funds  to  complete  said  work,  bonds 

J^>^  were  issued  by  said  district,  some  of  which  were  still  outstanding  and 

unpaid.  On  this  state  of  facts  the  district  could  not  be  dissolved  by 
the  court,  even  on  the  petition  of  the  necessary  property  owners,  until 
these  bonds  were  paid. 

The  district  did  not  forfeit  its  corporate  powers  by  non-user. 
Neither,  as  we  have  seen,  was  the  corporation  dissolved  by  failure  to 
elect .oflScers.     The  drainage   commissioners   appointed   in  1895  and 

ijj^i^ys  1897  continued  in  office  until  their  successors  were  chosen  and  qualified. 

yi^^^     TrMSifees  of  Schools  v.  Coivden,  240  111.  39  ;  People  v.  Morrdl,  234  id. 

vf*'^         47.     The  county  court  had  the  authority  to  appoint,  as  it  did,  the  de- 

)  fendants  in  error  commissioners  under  section  62  of  the  said  Levee  act. 

Hurd's  Stat.  1908,  p.  838. 

"We  find  no  reversible  error  in  the  record.  The  judgment  of  the 
circuit  court  will  therefore  be  affirmed. 

-,  >  Judgment  affirmed. 


^Jsi 


^^ 


iU«iv>% 


CHALSTEAN  v.   BOARD  OF  EDUCATION. 

1910.     244  ///.  470.  ,  \  ^- ^-**^*^j3o^ 

This  is  an  action  of  assumpsit  brought  in  November,  1907,  in  the  ''  * 
circuit  court  of  Knox  County,  by  E.  A.  Chalstran,  appellee,  against  the 
Board  of  Education  of  Township  High  School  District  13,  range  1, 
east,  Knox  county,  Illinois,  appellant.  On  March  2,  1906,  appellee 
entered  into  a  written  contract  with  said  board  to  build  a  high  school 
building  for  Si, 560.     Before  that  date  a  petition  had  been  filed  for  an 


Uf 


A 


iJT> 


^jyr-^- 


1-vwCtV 


CHALSTEAN   V.    BOARD    OF    EDUCATION",  7o 

election  to  vote  for  or  against  the  discontinuance  of  said  township  highj 
school.     Appellee  knew  of  this  petition  at  the  time  .lie.  executed  the 
contract.     At  tlie  election  held  on  April  2,  1906,  it  was  voted  to  dis- 
continue the  school.^ 

Carter,  J.      It  is  conceded  that  the  vote  to  discontinue  the  high 
school  district  was  taken  in  accordance  with  the  law,  the  sole  question 
in  dispute  being  as  to  the  effect  of  that  vote.     Section  44  of  article  3 
of  the  School  law  (Kurd's  Stat.  1908,  p.  1920),  after  providing  for  the 
canvass  of  the  ballots  in  an  election  held  as  to  the  discontinuance  of  a 
high  school,  reads  :   "  If  the  majority  of  the  votes  at  sucli  election  shall 
be  found  in  favor  of  discontinuing  the  high  school,  it  shall  be  the  duty 
of  the  trustees  to  discontinue  the  same,  and  turn  all  the  assets  of  the 
said  high  school  over  to  the  school  fund  of  the  township  or  townships      ''  .  .     \ 
interested  therein,  in  proportion  to  the  assessed  valuation  of  said  town-    ^^^'^■■•^ 
ships,  to  be  used  as  any  other  township  fund  for  school  purposes." 
This  law  was  in  force  at  the  time  said  vote  to  discontinue  was  taken.  , 
It  is  practically  the  only  section  of  the  statute  which  has  a  direct 
bearing  on  the  closing  up  of  the  affairs  of  a  high  school  district  so 
discontinued. 

Public  corporations  are  but  parts  of  the  machinery  employed  in  car- 
rying on  the  affairs  of  the  State,  and  they  are  subject  to  be  changed, 
modified  or  destroyed,  as  the  exigencies  of  the  public  may  demand. 
Trustees  of  /Schools  v.  Tatman,  13  111.  27  ;  Amy  v.  Watertoivn,  130  U.  S. 
801.  The  legislature  has  supreme  power  over  them,  and  may  divide, 
alter,  enlarge  or  abolish  them,  as  in  the  legislative  judgment  the  public 
welfare  may  require.  City  of  Chicago  v.  Town  of  Cicero,  210  111.  290  ; 
Town  of  Cicero  v.  City  of  Chicago,  182  id.  301;  People  v.  McBrid-e, 
234  id.  146.  Municipal  corporations  can  only  be  dissolved  through 
legislative  authority.  1  Dillon  on  Mun.  Corp.,  4th  ed.,  108.  But  the 
legislative  authority  over  municipal  corporations  is  not  in  all  respects 
unlimited.  Tliat  authority  is  regulated  and  controlled  by  the  provi- 
sions of  the  national  and  State  constitutions.  1  Dillon  on  Mun.  Corp., 
4th  ed.,  sec.  65.  The  rights  and  franchises  of  municipal  corpora- 
tions, being  granted  for  purposes  of  government,  are  not  such  vested 
rights,  as  against  the  State,  that  they  cannot  be  taken  away,  nor  does 
the  charter  of  a  municipal  corporation  constitute  a  contract  in  the  sense 
of  the  constitutional  provision  which  prohibits  the  obligation  of  con- 
tracts being  violated.  Cooley's  Const.  Lim.,  7th  ed.,  206.  While  the 
charter  itself  can  be  modified  or  abolished,  if  a  municipal  corpora- 
tion has  become  indebted  under  its  charter,  the  rights  of  a  creditor 
based  upon  the  obligation  of  a  contract  cannot  be  impaired  by  any 
subsequent"  legislative  enactment.  1  Dillon  on  Mun.  Corp.  (4th  ed.) 
sees.  63,  69  ;  Wolfy.  New  Orleans,  103'U.  S.  858;  Milnefs  Admr.  v. 
Fensacola,  2  Wood  (U.  S.  Cir.  Ct.),  662. 

The  record  shows  that  the  high  school  district  in  question  had  been 
established  only  a  year  previous  to  the  date  of  the  vote  to  discontinue. 

1  The  remainder  of  the  facts  are  omitted.  — Ed. 


76  CHALSTRAN   V.    BOARD   OF   EDUCATION. 

Counsel  for  the  appellant  insist  that  the  legislature  could  not  have  in- 
tended that  these  two  votes  were  to  be  taken  within  a  year,  and  that  a 
fair  construction  of  the  law  does  not  require  the  high  school  district  to 
be  abolished  as  soon  as  the  vote  to  discontinue  is  taken.  They  argue 
that  if  a  high  school  is  being  conducted,  the  legislature  must  have  in- 
tended that  it  should  continue  until  the  end  of  the  then  current  school 
year.  Beyond  question,  under  the  authorities,  the  legislature  could 
make  such  conditions  as  appellant  contends  it  did  make  by  the  existing 
laws.  But  no  such  conditions  are  found  in  the  statute.  The  statute 
only  provides  that  on  the  vote  being  canvassed  the  high  school  shall  be 
discontinued  and  the  assets  turned  over  to  a  certain  fund. 

Appellant  further  argues  that  if  the  effect  of  this  vote  was  to  abolish 
the  high  school  immediately,  then  it  must  necessarily  follow  that  the 
part  of  the  contract  which  was  not  completed,  if  not  binding  upon  both 
parties,  could  not  be  binding  on  either.  Appellant  insists  that  section 
44  of  the  School  law  was  in  force  at  the  time  the  contract  was  entered 
into  and  had  become  a  part  of  it.  Barrett  v.  Bodie,  158  111.  479 ; 
Abbott  on  Mun.  Corp.  sec.  88.  Appellee  knew,  at  the  time  he  entered 
into  this  contract  with  the  high  school  board,  of  the  legislative  provi- 
sion authorizing  the  discontinuance  of  the  district.  If,  fairly  construed, 
this  statute  shows  that  the  legislative  intention  was  as  contended  for 
by  appellant,  then  such  intention  must  be  carried  out  unless  it  be  in 
contravention  of  the  State  or  Federal  constitution.  The  same  obMga- 
tion  to  perform  contracts  rests  upon  a  municipal  corporation  as  upon  a 
natural  person,  unless  a  plain,  clear  provision  in  the  charter  provides 
otherwise.  The  statutory  provision  referred  to  authorized  the  high_ 
school  to  be  discontinued ;  but  is  it  to  be  presumed,  on  the  wording  of 
this  statute,  that  the  legislature  Intended  to  absolve  the  district  from" 
tEis~liability  to  contractors  or  creditors  whose  rights  had  become 
vested?  Sjachajaw,  conceding  that  the  legislature  has  the  constitu 
tional  right  to  enact  it,  would  place  persons  contracting  with  municipal 
corporations  on  a  basis  so  insecure  that  few  would  care  to  enter  into" 
municipal  contracts.     Morris  &  Cummings  v.  State,  62  Tex.  728. 

Counsel  for  appellee  contend  that  the  same  rule  applies  to  this  con- 
tract after  it  was  repudiated  by  the  vote  of  the  people  as  would  apply 
to  an  ordinary  contract  between  individuals,  —  that  is,  they  claim  that 
the  injured  party  has  the  right  to  pursue  either  of  three  remedies : 
First,  to  ti'eat  the  contract  as  rescinded  and  recover  upon  a  quantum 
meruit  so  far  as  it  has  been  performed  ;  or,  second,  to  keep  the  con- 
tract alive  for  the  benefit  of  both  parties  being  at  all  times  himself 
ready  and  able  to  perform  it,  and  at  the  end  of  the  time  specified  sue 
and  recover  under  the  contract;  or,  third,  to  treat  the  repudiation  as 
putting  an  end  to  the  contract  for  the  purposes  of  performance  and 
sue  for  the  profits  he  would  have  realized  if  the  contract  had  been 
completed.  Lake  Shore  and  3fichigan  Southern  Railway  Co.  v.  Rich- 
ards,  152  111.  59;  Wells  \.  National  Life  Ass' n  of  Hartford,  53  L.  R.  A. 
33,  note  h;  99  Fed.  Rep.  222.     We  have  no  authority  that  passes  on 


CHALSTRAN   V.   BOARD   OF   EDUCATION. 


77 


the  precise  question  here  involved.  In  Potts  v.  Supervisors,  25  Wis. 
506,  tiae  court  held  that  the  repeal  of  a  statute  rendered  nugatory  an 
executory  contract.  The  United  States  Supreme  Court  has  held  that 
section  10  of  article  1  of  the  United  States  Constitution,  prohibiting 
any  State  from  passing  a  law  impairing  the  obligation  of  contracts, 
applies  as  well  to  executory  as  executed  contracts.  Cooley's  Const. 
Lim.,  7th  ed.,  p.  384.  Said  section  44  of  the  School  law,  as  we  have 
seen,  became  a  part  of  this  contract  at  the  time  of  its  execution.  In 
this  case  appellee  recovered  only  for  the  profits  that  he  proved  he 
would  have  realized  had  he  completed  the  contract.  We  do  not  find  it 
necessary  to  consider  or  decide  whether  he  would  have  been  entitled, 
under  the  contract  and  statute,  to  go  ahead  and  complete  the  high 
school  building  and  then  recover  for  the  full  amount.  It  is  proper, 
however,  to  state  that  wise  public  policy  would  seem  to  sanction  the 
course  that  was  pursued.  After  the  high  school  district  was  discon- 
tinued a  completed  high  school  building  would  be  of  little  value  to  the 
township.  Appellee's  right  to  profits  in  this  contract  should  not  be 
taken  from  him  without  his  consent,  unless  the  right  to  do  so  is  reserved 
in  the  contract  or  in  the  law,  which  is  necessarily  a  part  of  the  cou- 
ti-act.  Cooley's  Const.  Lim.,  7th  ed.,  p.  392.  Ordinarily  the  State  is 
liable  for  prospective  profits,  on  breach  of  contract,  to  the  same  ex- 
tent as  an  individual.  Masterton  v.  Mayor,  42  Am.  Dec.  (N.  Y.)  138, 
and  note ;  Danolds  v.  State,  89  N.  Y.  36 ;  26  Am.  &  Eng.  Ency.  of 
law,  2d  ed.,  p.  478,  and  cases  there  cited.  If  under  this  provision  of 
the  statute  it  was  intended  that  appellee  should  have  no  right  to  the 
profits  for  that  part  of  the  contract  which  he  had  not  completed,  then 
his  right  to  such  profits  would  not  be  vested.  We  do  not  think  it  was 
so  intended.  Considering  the  various  provisions  of  the  High  School 
law,  we  are  disposed  to  hold  that  under  the  present  wording  of  the 
statute,  fairly  construed,  the  high  school  district  was  liable,  even  after 
the  vote  to  discontinue,  for  the  profits  that  would  have  accrued  to 
appellee  had  he  completed  his  contract. 

The  question  still  remains  whether  the  action  should  have  been 
brought  against  the  board  of  trustees  of  the  former  high  school  district 
or  against  some  other  school  official  or  board.  Was  the  high  school 
district  absolutely  abolished  as  soon  as  the  vote  was  taken  and  can- 
vassed? This  court  has  held  that  the  effect  of  the  dissolution  of  a  mu- 
nicipal corporation  by  quo  ivarranto  proceedings  was  to  destroy  it  as  a 
public  institution ;  that  thereafter  it  could  neither  sue  nor  be  sued,  con- 
vey property  or  make  further  contracts.  Dochje  v.  People,  113  111.  491. 
It  has  also  been  held  that  the  absolute  repeal  of  a  charter  destroys  all 
officers  under  it  and  puts  an  end  to  the  tenure  of  office  of  the  incum- 
bents. Crook  V.  People,  106  111.  237;  People  v.  Brown,  83  id.  95; 
28  Cyc.  256,  and  cases  cited.  Whatever  the  legislative  intention  with 
reference  to  the  transactions  into  which  said  high  school  district  has 
entered  and  which  were  then  authorized  by  law,  it  was  not  intended 
that  the  high  school  authorities,  after  the  vote  to  discontinue,  could 


-i 


78 


CIIALSTRAN   V.    BOARD    OF   EDUCATION. 


-^T 


l.> 


origiuate  new  business,  except  that  necessary  to  close  up  the  affairs  of 
the  district.  Greenivood  v.  Freight  Co.,  105  U.  S.  13.  The  legislature 
has  provided  by  statute  how  pnvate  corporations  shall  close  up  their 
I  business  aflfairs,  and  has  speci^aUy  stated  that  such  corpoi'ations  shall 
'  be  capable  of  prosecuting  and  defending  suits,  and  that  all  remedies 
against  such  corporations,  their  stockholders  or  officers,  for  liabilities 
incurred  previous  to  the  dissolution,  shall  not  be  taken  away  or  im- 
paired. Kurd's  Stat.  1908,  chap.  32,  sees.  10-12,  p.  526.  The  legis- 
lature could  have  made  the  same  specific  provisions  with  reference  to 
municipal  corporations,  but  it  has  not  done  so.  It  has  been  held  that 
where  public  corporations  have  been  absolutely  dissolved  without  mak- 
ing any  provision  for  the  payment  of  their  obligations,  and  where  no 
municipal  successor  has  been  created,  a  creditor  has  only  the  faith  of 
that  legislature  upon  which  to  rely.  Barkley  v.  Levee  Comrs.,  93  U.  S. 
558 ;  Bates  v.  Grerjory,  89  Cal.  387.  Yet  this  conclusion  is  reached 
by  the  courts  with  great  reluctance  and  only  when  no  other  possible 
construction  can  be  placed  upon  the  legislature.  Municipalities  may 
have  their  boundaries  modified,  their  names  changed  or  one  may  be 
merged  in  another,  or  they  may  be  divided  and  portions  of  their  terri- 
tory annexed,  but  it  will  be  presumed  that  the  legislature  intended  that 
the  liabilities  as  well  as  the  rights  of  property  of  the  corporation  shall 
accompany  it  into  the  jurisdiction  of  the  territory  which  annexes  or  in- 
corporates it.  Mt.  Pleasant  v.  Beckwitli,  100  U.  S.  514;  Shapleigh  v. 
Sayi  Angela,  167  id.  646.  If  the  changes  do  not  amount  to  an  abso- 
lute dissolution,  the  remedies  necessary  for  the  collection  of  the  debt 
of  the  creditor  will  remain  in  force.  Mobile  v.  Watson,  116  U.  S.  289. 
Where  the  rights  of  creditors  are  involved,  the  presumption  is  ex- 
tremely strong  that  the  identity  of  the  corporation  continues  notwith- 
standing different  powers  are  possessed  by  the  new  organization  and 
different  officers  administer  its  affairs.  1  Dillon  on  Mun.  Corp.,  4th  ed., 
sec.  172.  If  there  are  in  existence  any  assets  in  the  hands  of  public 
officials  and  there  are  no  remedies  at  law  by  which  creditors  can  en- 
force the  payment  of  obligations  from  such  assets,  courts  of  equity 
will  take  jurisdiction  and  direct  the  application  of  the  taxes  so  collected 
to  the  use  for  which  they  were  levied.  "The  ancient  doctrine,  that 
upon  the  repeal  of  a  private  corporation  its  debts  were  extinguished 
and  its  real  property  reverted  to  its  grantors  and  its  personal  property 
vested  in  the  State,  has  been  so  far  modified  by  modern  adjudications 
that  a  court  of  equity  will  now  lay  hold  of  the  property  of  a  dissolved 
corporation  and  administer  it  for  the  benefit  of  its  creditors  and  stock- 
holders. The  obligation  of  contracts,  made  whilst  the  corporation 
was  in  existence,  survives  its  dissolution,  and  the  contracts  may  be 
enforced  by  a  court  of  equity  so  far  as  to  subject,  for  their  satisfac- 
tion, any  property  possessed  by  the  corporations  at  the  time.  In  the 
view  of  equity  its  property  constitutes  a  trust  fund  pledged  to  the 
payment  of  the  debts  of  creditors  and  stockholders,  and  if  a  municipal 
corporation,  upon  the  surrender  or  extinction,  in  other  ways,  of  its 


CHALSTRAN  V.   BOAED  OF  EDUCATION.  79 

charter,  is  possessed  of  any  property,  a  court  of  equity  will  equally 
take  possessiou  of  it  for  the  benefit  of  the  creditors  of  the  corporation." 
B)-oughto7i  V.  Pensacola,  93  U.  S.  266  ;  Meriwether  v.  Garrett,  102  id. 
472  ;   O'Connor  v.  Memphis,  74  Tenn.  730. 

It  appears  from  the  stipulation  of  facts  that  the  taxes  for  the  high 
school  district  levied  for  1905  have  been  collected  and  are  in  the  hands 
of  the  township  treasurer,  the  proper  official  to  hold  them  for  the  high 
school  district  when  it  was  in  existence  and  the  proper  official  to  hold  , 
them  for  the  present  public  authorities.     We  think  these  taxes,  and  i 
assets,  if  any,  of  the  high  school  district,  are  properly  subject  to  the  r' 
payment  of  the  legal  obligations  of  said  high  school  district.  ' 

Did  the  legislature,  by  the  act  here  in  question,  ai>thorize  the  high 
school  officials  to  close  up  its  affairs  ?  Said  section  44  provides  that 
after  canvassing  the  vote,  if  found  to  be  in  favor  of  discontinuance,  it 
shall  be  the  duty  of  the  trustees  to  discontinue  the  high  school  and 
turn  all  the  assets  of  said  high  school  over  to  the  school  fund  of  the 
township  or  townships  interested  therein,  in  proportion  to  the  assessed 
valuation  of  the  townships.  In  this  case  the  high  school  district  wa»-  ^ 
in  one  town  and  the  duty  of  turning  over  the  assets  would  be  compara-  ■ 
tively  simple,  but  if  the  high  school  district  were  formed  of  two  or 
more  townships  or  parts  of  townships,  and  had  property,  not  in  money, 
belonging  to  it,  such  as  a  high  school  building,  then  it  would  be  neces- 
sary, before  the  assets  could  be  divided  among  the  various  townships 
in  proporton  to  the  assessed  valuation  of  such  townships,  that  the 
trustees  dispose,  in  some  way,  of  the  property.  We  think  the  legisla- 
ture intended  by  this  statute  that  the  trustees  of  the  township  high  , 
school_ should  not  only  have  the  power  to  divide  the  assets,  but  in 
order  to  divide  them  proportionately  they  should  previously  settle  all  i 
lial)ilities  against  the  high  school  district.  If  this  be  the  fair  construc- 
tion of  the  statute,  then,  necessarily,  the  high  school  district  could  sue 
and  be  sued  after  the  vote  in  favor  of  discontinuance.  The  funds  col- 
lecfecl  for  the  purpose  of  building  this  high  school  are  properly  in  the 
hands  of  the  township  treasurer  of  the  township  in  which  the  former 
high  school  district  was  located.  They  are,  however,  subject  to  the 
payment  of  this  judgment  in  like  manner  as  they  would  be  if  the  dis- 
trict were  still  in  existence. 

The  board  of  education  of  the  former  township  high  school  district 
was  the  proper  defendant  in  this  case. 

The  judgment  of  the  Appellate  Court  must  therefore  be  affirmed. 

Judgment  aMrmed. 


80        \ 


<v 


\ 


UNITED   STATES   BANK   V.   KENDALL. 


^ 


UNITED   STATES   BANK  v.  KENDALL. 
1910.     179  Fed.  914. 


1^  ^..iMT^-. 


Phillips,  District  Judge. ^  The  plaintiff  brought  an  action  in  as- 
sumpsit against  the  defendant,  a  municipal  corporation  of  Hamilton 
county,  Kan.,  to  recover  judgment  on  certain  improvement  bonds  and 
coupons  issued  by  it.  Writ  of  summons  was  duly  issued  thereon,  di- 
rected to  the  United  States  marshal  of  this  district,  who  made  the 
following  return  thereon : 

"  Eeceived  the  within  writ  March  21,  1908,  and  served  the  same 
upon  the  within-named  city  of  Kendall,  in  the  county  of  Hamilton,  in 
the  state  of  Kansas,  by  delivering  to  J.  E.Johnson,  mayor,  personall}^ 
a  true  and  certified  copy  of  this  writ  with  all  indorsements  thereon,  at 
Kandall,  Kan.,  on  the  24th  day  of  March,  1908," 

There  was  no  appearance  by  the  defendant  at  the  time  as  required, 
or  at  any  other  time.  But  at  the  return  term  the  said  J.  E.  Johnson, 
appearing  only  for  the  purpose  of  the  motion,  filed  motion  to  set  aside 
said  service  of  summons,  on  the  ground  that  he  had  never  been,  and 
is  not  now,  mayor,  officer,  or  representative  of  any  kind  or  in  any  ca- 
pacity of  the  defendant  city ;  that  the  said  city  had  been  for  over  15 
years  last  past,  and  still  is,  incapacitated  from  appearing  herein  as  a 
municipal  corporation ;  that  it  had  ceased  to  exist  as  such  for  a  long 
time  prior  to  the  commencement  of  this  action. 

Furthermore,  the  affidavit  of  Johnston  in  support  of  his  motion  does 
not  assert  that  the  defendant  was  never  duly  created  a  municipal  cor- 
.poration,  or  that  it  had  ever  been  dissolved.  It  only  represents  that 
it  had  failed  to  elect  a  board  of  directors  for  a  series  of  years,  and  that 
the  attempt  to  nominate  him  as  mayor  was  abortive.  The  statute  of 
Kansas  (Gen.  St.  Kan.  1905,  c.  23,  art.  5)  [provides]  how  such  cor- 
poration may  be  dissolved: 

"  First  by  the  expiration  of  the  time  limited  in  its  charter;  second, 
by  a  judgment  of  dissolution  rendered  by  a  court  of  competent  juris- 
diction ;  but  any  such  corporation  shall  be  deemed  to  be  dissolved  for 
the  purpose  of  enabling  any  creditors  of  such  corporation  to  prosecute 
suits  against  the  stockholders  thereof  to  enforce  their  individual  liabil- 
ity, if  it  be  shown  that  such  corporation  has  suspended  business  for 
more  than  one  year,  or  that  any  corporation  now  so  suspended  from 
business  shall  for  three  months  after  the  passage  of  this  act  fail  to  re- 
sume its  usual  and  ordinary  business." 

By  another  provision  of  the  statute  it  is  provided  that  the  term  of 
all  electi^yor  apjiqiivtiye  officers  shall  be  for  specified  period,  ai;td  until 
their  successors  are  elected  and  qualified.  ^ 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


UNITED    STATES    BANK   V.    KENDALL.  81 

Dillon  in  his  work  on  Corporations  (4th  ed.  vol.  1,  §  166),  speaking 
to  this  subject,  sa^'S  : 

"•Here  it  is  the  people  of  the  locality  who  are  erected  into  a  corpor- 
ation, not  for  private,  but  for  public  or  (/nasi  public,  purposes.  The 
corporation  is  mainly  and  primarily  if  not  wholly  an  instrument  of 
government.  The  officers  do  not  constitute  the  corporation,  or  an  in- 
tegral  part  of  \t.  The  existence  of  the  corpoi'ation  does  not  depend 
upon  the  existt'iice  i^f  of'lieers.  The  qualitied  voters  or  electors  have, 
TiTdywt; — CflB'  Tighl  to  st-Icet  oliieers ;  but  such  officers  are  the  mere 
agents  or  servants  of  the  corporation,  and  hence  the  doctrine  of  a 
dissolution  by  the  loss  of  an  integral  part  has,  in  such  cases,  no  place. 
If  all  the  people  of  the  defined  locality  should  wholly  remove  from  or 
desert  it,  the  corporation  would,  from  necessity,  be  suspended  or  dor- 
mant, or  perhaps  entirely  cease  ;  but  the  mere  neglect  or  mere  failure 
to  elect  officers  will  not  dis'solve  the  corporation,  certainly  not  while 
the  right  or  capacity  to  elect  remains.  In  this  respect  municipal  con- 
porations  resemble  ordinary  private  corporations,  which  exist  ver  se, 
and  consist  of  the  stockholders  who  compose  the  company.  The  offi- 
cers are  their  agents  or  servants,  but  do  not  constitute  an  integral  part 
of  their  corporation,  the  failure  to  elect  whom  may  suspend  the  func- 
tions, but  will  not  dissolve  the  corporation." 

See  Welch  v.  Ste.  Genevieve,  1  Dill.  130,  Fed.  Cas.  No.  13,372. 

It  is  matter  of  public  history  that  some  communities  under  munici- 
pal chartei'S,  with  more  enterprise  than  discretion  —  optimistic  of  the 
future,  but  little  reckoning  of  the  day  of  redemption  —  have  in  the 
past  put  upon  open  market  bonds,  garish  with  gilt  and  tempting  with 
high  rates  of  interest.    When  the  confiding  purchaser  comes  to  demand 
paj'ment  he  finds  a  bankrupt  town.     Under  the  suggestion  of  some 
leader  resort  is  taken  to  the  coup  d'etat  of  either  having  the  governing 
board  resign,  or  the  voters  to  forget  to  hold  any  more  elections.     So 
that  when  the  process  server  comes  with  the  writ  of  summons  the  vil- 
lage school  master  appears  and  proclaims,  "  Ilium  fuit,"  suggesting  a 
return  of  non  est  inventus.     But  the  law  says  in  such  contingency  the  \ 
writ  may  be  served  upon  the  designated  officer  last  in  office.     Sala-i 
manca  ToimsJup  v.   Wilson,  109  U.  S.  627,  3  Sup.  Ct.  344,  27  L.  Ed.* 
1055;   Welch  v.  Ste.  Genevieve,  1  Dill.   loc.  cit.  133,  Fed.  Cas.  No. 
17,372;  Muscatine  Turnverein  y,  Funck.,  18  Iowa,  469.     If  in  such 
contingency  it  be  disputed  that  the  person  served  was  not  such  officer,.  ^<=^'  *'^^'' 
de  Jure  or  de  facto,  the  question  may  be  tested  by  the  uudissnlve(;^  nni;-i  fcV*-"^' 
poration  by  the  recotyn^^ipd  p^pfl      Tf  it  has  no  representative  to  thus ' 
protect  it,  it  is  the  author  of  its  own  misfortune.     The  way  of  the 
transgressor  always  has  been  and  always  will  be  hard.  • 


82  LE    ROY   V.    HUKLBUT. 


Section   2.,    Lerjislative  Control.  \    \,    f\.      Ljcn 

PEOPLE  EX  REL.   LE   ROY   v.    HURLBUT  et  al.  (M^***^^  ^ 

1871.     24  McA,>an,  44.1  ^Jj^^^j;;^^^;]^^^^ 

Informations  in  tlie  nature  of  quo  xcarranto.  ^*..j>y^^i,  Q.«t«-^  ^^' 
Tliese~i5ro*ceedings  are  brought  to  test  tbe  right  of  the  members  of^"*^ 
Che  boards  of  water  commissioners,  and  of  sewer  commissioners  of  tha^^^" 
city  of  Detroit,  to  continue  to  hold  their  respective  offices  after  th(Pl  t^ 
taking  effect  of  the  act  estabiisliing  p,  boai'd  of  public  works;  and'tt^^ 
the  questions  raised  relate  to  the  validity  of  said  act.  ^<^ 

The    act-  transfers    to   the   board  of  public  works  all  the  powers,^t^~^ 
duties,  and  responsibilities  of  the  old  board  of  water  commissioners^  ri 
the  board  of  sewer  commissioners,  and  of  the  commissioners  of  gradeSfXiB 
and  plans.     It  gives  the  board  charge  and  control  of  the  constructionij^fcQ 
of  all  public  buildings  except  school-houses,  public  sewers,  drains,  and  i-\^^ 
■water- works.      It   authorizes   the   board   to  take  proceedings  to  tjon-l^^ 
demn  propert}'  by  the  right  of  eminent  domain  ;  to  contract  for  the/j,^ 
performaiice  of  the  variou.s  works  confided  to  their  charge,  to  employ  r    ■* 
workmen,  to  draw   upon  the  proper  funds  for  payment  of  expenses, ,^^2^ 
and  to  issue  bonds  in  certain  cases  to  obtain  means  for  carrying  on  ^  , 
any  of  said  works.  -fl 

The  first  members  of  the  board  are  appointed  by  the  legislature,  and^,^^^*^ 
in  the  act  itself     The3'  are  four  in  number,  and  are  to  hold  b}'  classi- J|^^^ 
fied  terms  of  two,  four,  six,  and  eight  years.    All  vacancies,  whether  by 
expiration  of  term  of  service  or  otherwise,  shall  be  filled  bv  the  com 
mon  council  of  the  cit}'.;  and  no  person  shall  be  eligible  for  said  board     -i 
who  is  not  a  freeholder  in  said  cit3'  and  a  qualified  elector.  a^^ 

CooLEY,  J.     [After  discussing  other  points. j     We  have  before  ns  a   i^j 
legislative  act  creating  for  the  cit}  of  Detroit  a  new  board,  which  is  to     7^ 
exercise  a  considerable  share   of  the   authorit}'  usuall}'  possessed  by 
officers  locally  chosen  ;  to  have  general  charge  of  the  city  buildings, 
property  and  local  conveniences,  to  make  contracts  for  public  works 
on  behalf  of  the  cit}',  and  to  do  man}'  things  of  a  legislative  character 
which  generallv  the  common  council  of  cities  alone  is  authorized  to  do. 
The  legislature  has  created  this  board,  and   it  has  appointed  its  mem-" 
bers  ;  and  both  the  one  and  the  other  have  been  done  under  a  claim 
of  right  which,  unless  I  wholh'  misunderstand  it,  would  justify  that 
body  in  taking  to  itself  the  entire  and  exclusive  government  of  the 
cit}',  and  the  appointment  of  all  its  officers,  excepting  only  the  judicial, 

1  Three  opinions  omitted  ;  also  the  arguments.  —  Ed. 

2  This  statement  of  the   provisions  of  the  act    is   abridged   from   the   opinion  ol 
Christiancv,  J.,  24  Mich.  p.  5.1-58,  and  p.  74.  —  Ed.  ^  ,-  ^...^^,..,„^,^ 


LE   ROY   V.    HURLBUT. 


83 


c\7^^:^ 


for  which,  hy  the  constitution,  other  provision  is  expressly  made. 
And  tlie  question,  broadly  and  nakedh'  stated,  can  be  nothing  short 
of  this  :  Whether  local  self-government  in  this  state  is  or  is  not  a 
mere  privilege,  conceded  by  the  legislature  in  its  discretion,  and  which 
"may  be^withdrawn  at  any  time  at  pleasure?  I  state  the  question  tiius 
ibroadly  because,  notwithstanding  the  able  arguments  made  in  this 
case,  and  after  mature  delil)eration,  I  can  conceive  of  no  argument  in 
support  of  the  legislative  authority  which  will  stop  short  of  this  plenary 
jiUtl  sovereign  right. 

Now,  it  must  be  conceded  that  the  judicial  decisions  and  law  writers 
generally  assert  that  the  state  creates  the  municipal  bodies,  endows 
them  witii  such  of  the  functions  of  corporate  life  and  entrusts  them 
with  such  share  in  the  local  government,  as  to  the  legislative  judg- 
ment shall  seem  best ;  that  it  controls  and  regulates  their  action  while 
they  exist,  subjects  them  to  such  changes  as  public  polic}'  ma^'  dictate, 
and  abolishes  them  at  discretion;  in  short  that  the  corporate  cntjtieg  '^''^^■''^v^  -^^^ 
are   mere  agencies   which  tlie   state  employs   for  the    convenience   oi   Vv^Ok>uiL.a- 
government,  clothing  tlicm    for  the  time   being  with  a  portion  of  its'    -  Jtl*  LaJ»-«» 
^rvereightyT-btit'Tecaning  the  whole  or  anj-  part  thereof  whenever  the    i 
necessity  or  usefulness  of  the  delegation  is  no  longer  a[)p;irent.     Thisl"^.        .     .fr 
r^iiidi'istand  to  be  the  accepted  theory*  of  state  constitutional  law  as 
regards  the    municipal  governments.     We   seldom    have   occasion   to 
inquire  whether  this  amplitude  of  legislative  authority  is  or  is  not  too 
strongly  expressed,  for  the  reason  that  its  exercise  is  generalh'  con- 
fined within  such  bounds  as  custom  has  pointed  out,  so  that  no  ques- 
tion is  made  concerning  it.     But  such  maxims  of  government  are  very 
seldom  true  in  an}'  thing  more,  than  a  general  sense;  the}'  never  are 
an'dTi'^ver  can  be  literalh'  accepted  in  practice. 

Our  constitution  assumes  tlie  existence  of  counties  and  townships, 
and  evidently  contemplates  that  the  state  shall  continue  to  be  sub- 
divided as  it  has  hitherto  been  ;  but  it  nowhere  expressly  provides 
that  every  portion  of  the  state  shall  have  county  or  township  organi- 
zations. It  names  certain  officers  which  are  to  be  chosen  for  these 
subdivisions,  and  confers  upon  the  people  the  right  to  choose  them ; 
but  it  does  not  in  general  define  their  duties,  nor  in  terms  preclude 
the  legislature  from  establishing  new  offices,  and  giving  to  the  incum- 
bents the  general  management  of  municipal  affairs.  If,  therefore,  no 
restraints  are  imposed  upon  legislative  discretion  be^'ond  those  specifi- 
cally stated,  the  township  and  county  government  of  any  portion  of 
the  state  might  be  abolished,  and  the  people  be  subjected  to  the  rule 
of  commissions  appointed  at  the  capital.  The  people  of  such  portion 
might  thus  be  kept  in  a  state  of  pupilage  and  dependence  to  any 
extent,  and  for  an}'  period  of  time  the  state  might  clioose. 

The  doctrine  that  within  any  general  grant  of  legislative  power  by 
the  constitution  there  can  lie  found  authority  thus  to  take  from  the 
people  the  management  of  their  local  concerns,  and  the  choice,  directly 
OI   indirectly,   of  their  local  officers,  if  practically  asserted,  would   be 

3>'v^-^>..      -...^  u.:  fl-r    ,u^^\    ^^..^J^  ^^  ^^^^^ 


■*  V 


^. 


fv.-f 


84 


LE   KOY   V.   HURLBUT. 


somewhat  startling  to  our  people,  and  would  be  likel}'  to  lead  here- 
after to  a  more  careful  scrutiny  of  the  charters  of  government  framed 
by  them,  lest  sometime,  by  an  inadvertent  use  of  words,  the}'  might 
be  found  to  have  conferred  upon  some  agency  of  their  own,  the  legal 
authority  to  take  away  their  liberties  altogether.     If  we  look  into  tiie 
several  state  constitutions  to  see  what  verbal  restrictions  have  hereto- 
fore been  placed  upon  legislative  authority  in  this  regard,  we  shall  find 
them  very  few  and  simple.     We  have  taken  great  pains  to  surround 
the  life,  liberty,  and  propert}-  of  the  individual  with  guaranties,  but  we 
have  not,  as  a  general  thing,  guarded  local  government  with   similar 
protections.     We  must  assume  either  an  intention  that  the  legislative 
control  should  be  constant  and  absolute,  or,  on  the  other  hand,  that 
i  there  are  certain  fundamental  principles  in  our  general  frame-work  of 
Igovernment,  which  are  within   the  contemplation  of  the  people  when 
\they  agree  upon  the  written  charter,  subject  to  which  the  delegations 
pf  autliority  to  the  several  departments  of  government  have  been  made. 
That  this  last  is  the  case,  appears  to  me  too  plain  for  serious  contro- 
versy'.    The  implied  restrictions  upon  the  power  of  the  legislature,  as 
regards  local  government,  though  their  limits  may  not  be  so  plainly 
defined  as  express  provisions  might  have  made  them,  are  nevertheless 
,  equally  imperative  in  character,  and  whenever  we  find  ourselves  clearly 
I  within    them,  we  have  no  alternative  but  to  bow  to  their  authority. 
'  The  constitution  has  been  framed  with  these  restrictions  in  view,  and 
we  should  fall  into  the  grossest  absurdities  if  we  undertook  to  con- 
strue that  instrument  on  a  critical  examination  of  the  terms  employed, 
while  shutting  our  eyes  to  all  other  considerations. 

The  circumstances  from  which  these  implications  arise  are  :  First, 
that  the  constitution  has  been  adopted  in  view  of  a  system  of  local 
government,  well  understood  and  tolerablj'  uniform  in  character,  exist- 
ing from  the  verj'  earliest  settlement  of  the  country,  never  for  a  mo- 
ment suspended  or  displaced,  and  the  continued  existence  of  which  is 
assumed  ;  and,  second,  that  the  liberties  of  the  people  have  generall}' 
been  supposed  to  spring  from,  and  be  dependent  upon,  that  system. 

DeTocqueville  speaks  of  our  system  of  local  government  as  the 
American  system,  and  contrasts  it  forcibh*  with  the  French  idea  of 
centralization,  under  the  influence  of  which  constitutional  freedom  has 
hitherto  proved  impossible.  —  Democracy  in  America,  chapter  5. 
Lieber  makes  the  same  comparison,  and  shows  that  a  centralized 
government,  though  by  representatives  freely  chosen,  must  be  despotic, 
as  any  other  form  of  centralization  necessarily  is.  "  Self-government," 
he  says,  "  means  every  tiling  for  the  people  and  by  the  people,  con- 
sidered as  the  totality  of  organic  institutions,  constantly  evolving  in 
their  character  as  all  organic  life  is  :  but  not  a  dictatorial  multitude. 
Dictating  is  the  rule  of  the  army,  not  of  liberty  ;  it  is  the  destruction 
of  individuality." — Civil  Liberty  and  Self- Goo ernment,  chap.  21. 
The  writer  first  named,  speaking  of  the  New  England  township  gov- 
ernment, whose  system  we  have  followed  in  the  main,  says  :   "  lu  this 


?^^a¥^^^^'^      ..   ^ 


LE   EOY   V.    HURLBUT. 


85 


part  of  the"  union  the  impulsion  of  pohtical  activitj'  was  given  in  the  - 
townships  ;  and   it  may  ahnost  be  said  tliat  each  of  them  originalh- 
formed  an  independent  nation.     AVlien  the  Idngs  of  England  asserted 
their  siipremaey,  they  were  contented  to  assume  the  central  power  of 
the  state.     The   townships  of  New  England    remained  as    they   were 
before  ;  and,  although  they   are   now   subject  to  the   state,  they   were 
at  first  scarcely  dependent  upon  it.     It  is  important  to  remember  that  i 
they  have  not  l)een  invested  with  privileges,  but  that  they  seem,  on  the  ' 
contrary,  to  have   surrendered  a  portion  of  their  independence  to  the  i 
state.     The  townships  are  only  subordinate  to  the  states  in  those  in-' 
terests  which  I  shall  term  social,  as  they  are  common  to  all  the  citizens. 
They  are  independent  in  all  that  concerns  themselves;  and  among  the 
inhabitants  of  New  England,  I  believe  that  not  a  man  is  to  be  found 
who  would  acknowledge  that  the  state  has  any  right  to  interfere  in  their 
local  interests."  —  Democracy  m  America,  uhi  sujjra.     Now,  if  this 
author  is  here  speaking  of  the  theory  of  our  institutions,  he  is  in  error. 
It  is  not  the  accepted  theory  that  the  states  have  received  delegations 
of  power  ft-om  independent  towns  ;  but  the  theory  is,  on  the  other  hand, 
that  the  state  governments  precede  the  local,  create  the  latter  at  discre- 
tion,  and  endow  them  with  corporate  life.     But,  historical Ij,  it  is  as 
difficult  to  prove  this  theory  as  it  would  he  to  demonstrate  that  the    \,"-OwA'vvvC- 
origin  of  government  is  in  compact,  or  that  title  to  property  comes 
from  occupancy.     The  historical  fact  is,  that  local  govci-nments  uni- 
versally, in  this  country,  were  either  simultaneous  with,  or  preceded,  the 
more  central'  authorit}-.     In  Massachusetts,  originally*  a  democracy,  the 
two  may  be  said  to  have  been  at  first  identical ;  but  when  the  colony 
became  a  representative  government,  and  new  bands  pushed  out  into 
the    Avilderness,    they    went   bearing   with   them    grants   of    land   and 
authority  for  the  conduct  of  their  local  affairs.  — Hutchinson^ s  Massa- 
chusetts Bay,  ch.  1  ;   'Washburn's  Jud.  Hist,  of  JIass.  ch.  1  ;  Body  of 
Liberties,  §§  62,  66,  72;  Elliot's  New  England,  Vol.  A:,  pp.  425,  427. 
But   in   Connecticut   the   several  settlements  originated  their   own 
governments,    and^tHough   these   wert  doubtless    very  imperfect  and 
informal,   the}'  were    sufficient   for   the    time   beirig,   and  the    central 
government  was  later  in  point  of  time. —  TrumbuWs  Hist,  of  Conn.^ 
Vol.    1,  pp.   132,    498;  Palfrey's   Nexo   England,    Vol.    1,  p.    454. 
What  the  colony  did  was  only  to  confer  charters,  under  which  the 
town    authority   would   be   administered    within    agreed    limits,    and 
possibly,  with  more   regularity  than  before.     In  Rhode  Island,   it  is 
also  true,  that  township  organization   was   first  in  ofcler  of  time.  — 
Arnold's   Hist.,  of  E.    I.,   ch.  7.     This  author  justly  remarks,  that 
when  the  charter  of  Rhode  Island  was  suspended  to  bring  her  under 
the  dominion  of  Andros,  "  the  American  system  of  town  governments^ 
which  necessity  had  compelled  Rhode   Island  to  initiate  fiftv  years 
before,  became  the  means  of  preserving  the  libertj'  of  the  individual 
citizen    when    that   of  the   state,  or   colonj',  was    crushed." —  Vol.  1, 
p.  487.     So  in  Ver-mont,  the  people  not  only,  for  a  time,   conducted 


QMC 


86  LE   ROY   V.   HURLBUT. 

all  their  public  affairs  in  towns  and  plantations,  tliroogh  Committees, 
officers  and  leaders,  nominally  appointed  and  submitted  to  by  general 
consent  and  approbation,  but  they  carried  on  tiieir  controversy  witli 
New  York  for  some  years,  witliout  any  other  organization,  —  Wil- 
liams' Hist,  of  Vermofit,  Vol.  2,  p.  163.  In  New  Jersey,  as  in 
Massachusetts,  towns  were  chartered  in  connection  with  grants  of 
land,  and  in  some  instances,  those  which  were  made  by  Nichols, 
adverse  to  the  proprietar}-,  were  suffered  to  remain  after  his  authority 
was  superseded.  —  See  instances  in  Jlul/ord's  Hist,  of  N.  J.  p^^- 
143-4.  The  charter  to  Lord  Baltimore  plainly  recognized  local  gov- 
ernment in  the  provision  requiring  the  laws  and  ordinances  estab- 
lished to  conform  to  the  laws,  statutes  or  rights  of  England.  — 
Mozman's  Hist,  of  Maryland,  p.  290.  And  county  authorities  seem 
to  have  existed  from  the  ver}-  first,  though  their  statutory-  organiza- 
tion, if  an}'  they  had,  cannot  be  traced.  —  Bozman,p>p.  299-303.  But 
it  cannot  be  necessary  to  particularize  further.  The  general  fact  was, 
that,  whether  the  colonial  or  local  authority  should  originate_  fii'st, 
depended  entirely  upon  circumstances  which  might  make  the  one  or 
the  other  the  more  immediate  need.  But  when  both  were  once  estab- 
lished the}'  ran  parallel  to  each  other,  as  the}'  were  meant  to  do,  for 
all  time;  and  what  Mr.  Arnold  says  of  Rhode  Island,  may  be  said 
generally  of  the  eastern  and  middle  states,  that  the  attempt  of  the 
last  two  Stuarts  to  overthrow  their  liberties,  was  defeated  1)}'  means 
of  the  local  organizations.  The  scheme  tried  first  in  England,  to 
take  away  the  corporate  charters  in  order  to  make  the  corporators  more 
dependent  on  the  crown,  and  to  restrain  them  from  political  action  in 
opposition  to  the  court  party,  found,  in  America,  the  colonial  chartei-s 
alone  within  the  reach  of  arbitrary  power ;  and  though  these  were 
taken  away  or  suspended,  it  was  only  with  such  protest  and  resistance 
as  saved  to  the.  people  the  town  governments.  In  Massachusetts,  it 
was  even  insisted  by  the  people's  deputies  that,  to  surrender  local 
government  was  contrary  to  the  sixth  commandment,  for,  said  they, 
"men  may  not  destroy  their  political,  any  more  than  their  natl^ral 
lives."  So,  it  is  recorded  they  clung  to  "the  civil  liberties  of  New 
England"  as  "  part  of  the  inheritance  of  their  fathers."  —  Palfrefs 
Keio  England,  Vol.  3.  pp.  381-883  ;  Bancroft's  U.  S.,  Vol.  2,  pp. 
125-127;  3fass.  Hist.  Col.,  XXI,  74-81.  The  whole  contest  with 
Andros,  as  well  as  in  New  England,  as  in  New  York  and  New  Jersey, 
was  a  struggle  of  the  people  in  defense  of  the  right  of  local  govern- 
ment. "Everywhere,"  says  Dunlap,  "the  people  struggled  for  their 
rights  and  deserved  to  be  free."  —  Hist,  of  N.  Y.,  Vol.  1,  p.  133  ;  and 
see  TrumbulVs  Hist,  of  Conn.,  Vol.  1,  ch.  15. 

I  have  confined  this  examination  to  the  states  which  have  influenced 
our  own  polity  most ;  but  the  same  principle  was  recognized  and  acted 
on  elsewhere.  The  local  governments,  however,  were  less  complete 
in  the  states  further  south,  and  this,  with  some  of  their  leading  states- 
men, was  a  source  of  regret.     Mr.  Jefferson,  writing  to  Governor  Tyler 


LE   ROY   V.    IIURLBUT. 


87 


O^^ff^ 


in  1810,  speaks  of  the  two  great  measures  which  he  has  at  heart,  one 
of  which  is  the  division  of  coiinti(;s  into  hundreds.  "  Tlicse  little 
republics,"  he  says,  ''  would  be  the  main  strengtTi  of  the  great  one. 
"We  owe  to  them  the  vigor  given  to  our  revolution,  in  its  commence-" 
ment,  in  the  eastern  states.  .  .  .  Could  I  once  see  this,  I  should 
consider  it  as  the  dawn  of  the  salvation  of  the  repubUc."  —  JeffersorCs 
Works^  Vol.  5,  p.  h'lb.  Mr.  Jefferson  understood  thoroughly  the 
truth,  so  quaintly  expressed  by  Bacon,  when  he  said  of  a  burden 
imposed  as  compared  to  one  freely  assumed,  that  "it  may  be  all  one  -  - 
to  the  purse,  but  it  worketh  diversely  upon  the  courage."  — ^' 

Such  are  the  historical  facts  regarding  local  government  in  America. 
Our  traditions,  practice  and  expectations  have  all  been  in  one  direc- 
tion.    And  \vhen_we_go  beyond  the  general  view  to  inquire  into  the  ' 
detailsof  authorit}',  we  find  that  it  lias  included  the  power  to  choose  \ 
in  some  form  the  persons  wlio  are  to  admiuist<?r  the  local  regulations.  :' 
Instances  to  the  contrary,  except  where  the  power  to  be  administered  ' 
was  properly  a  state  power,  have  been  purely  exceptional.     The  most 
prominent  of  these  was  the  case  of  the  maj-or  of  New  York,  who  con- 
tinued,   for   a   long   time   after   the   revolution,  the   appointee  of  the 
governor.     But  this  mode  of  choice  originated  when  the  cit}-  was  the 
seat  of  colonial  government,  and  while   it  constituted  a  large  part  of 
the  colon}',  and  the  office  was  afterwards  of  such  dignitj'  and  impor- 
tance, and  was  vested  with  so  man}'  general  powers,  that  one  of  the 
first  statesmen  of  the  nation  did  not  hesitate  to  resign  a  seat  in  the 
senate  of  the  United  States  to  accept  it.  —  Hammond's  Pol.  Hist,  of 
J^.Y.,   Vol.  1,7^.  197.     Moreover,  the  first  constitution  of  New  York         ^  <L_-rA, 
was,   in    important  particulars,   exceptional.     That   state    had   at   the  ^^^^^Tfljljr 
time  a  powerful  aristocratic  element,    by  which  its   first   institutions   '^^•^^^'^ 
were  in  a  great  measure  shaped  ;  and  a  distrust  of  popular  authority 
was   manifest.     It   is   scarcely    needful   to   say  that    features  of  that 
character  disappeared  when  the  constitution  was  revised.  -  ^ 

For  those  classes  of  officers  whose  duties  are  general,  —  such  as  the  ^r^*^****^ 
jud^s,  the  officers  of  militia,  the  superintendents  of  police,  of  quar- 
antine,  and  of  ports,  by  whatever  name  called,  —  pruvision  has,  to  ai 
greater  or  less  extent,  been  made  by  state  appointment.  But  these 
are  more  properly  state  than  local  officers  ;  they  perform  duties  for  the 
state  in  localities,  as  collectors  of  internal  revenue  do  for  the  general 
government ;  and  a  local  authority  for  their  appointment  does  not 
make  them  local  officers  when  the  nature  of  their  duties  is  essentially 
general.  In  the  case  before  us,  the  officers  in  question  involve  the 
custody,  care,  management,  and  control  of  the  pavements,  sewers, 
water-works  and  public  buildings  of  the  city,  and  the  duties  are  purely 
local.  The  state  at  large  may  have  an  indirect  interest  in  an  intelli^ 
gent,  honest,  upright  and  prompt  discharge  of  them  ;  but  this  is  on 
commercial  and  neighborhood  grounds  rather  than  political,  and  is  not 
much  greater  or  more  direct  than  if  the  state  line  excluded  the  citv. 
Conceding  to  the  state  the  authority  to  shape  the  municipal  organiza- 


cusv-v.Wj-.v; 


Jb'*^'*-^^^  tf^  ClxX" 


"^x^f*^*^^ 


^^t^--^^% 


88 


LE    ROY   V.   HUELBUT. 


tions  at  its  will,  it  would  not  follow  that  a  similar  power  of  control 
might  be  exercised  bj-  the  state  as  regards  the  property  which  the 
corporation  has  acquired,  or  the  rights  in  the  nature  of  property  VYhich 
have  been  conferred  upon  it.  There  are  cases  which  assert  such 
power,  but  thej'  are  opposed  to  what  seem  to  me  the  best  authorities, 
as  well  as  the  soundest  reason.  The  municipality,  as  an  agent  or 
government^  is  one  thing ;_  the  corporation,  as  an  owner  of  property 
is  in  some  particulars  to  be  regarded  in  a  very  different  light.  The 
supreme  court  of  tlie  United  States  held  at  an  early  day  that  grants  of 
property  to  public  corporations  could  not  be  resumed  by  the  sovereignty*. 
—  Terrett  v.  Taylor,  9  Cranch,  43  ;  Town  of  JPaiclet  v.  Clark,  ibid.,, 
292  ;  and  see  Dartmouth  College  v.  Woodward,  4  WJieat.,  694-698. 
When  the  state  deals  with  a  nuinicipal  corporation  on  the  footing  of 
contract,  it  is  said  b}'  Trumbull,  J.,  in  Michland  v.  Lawrence,  12 
111.,  8,  the  municipalit}'  is  to  be  regarded  as  a  private  company.  In 
Detroit  v.  Corey,  9  Mich.,  195,  Manning,  J.,  bases  his  opinion  that 
the  cit}'  was  liable  for  an  injurv  to  an  individual,  occasioned  b}'  falling 
into  an  excavation  for  a  sewer,  carelessly'  left  open,  upon  ttie  fact 
that  the  sewers  were  the  private  property'  of  the  city,  in  which  the 
outside  public  or  people  of  the  state  at  large  had  no  concern.  In 
Warren  v.  Lyons,  22  Iowa,  351,  it  was  held  incompetent  for  the 
legislature  to  devote  to  other  pul)lic  uses  land  which  had  been  dedi- 
cated for  a  public  square.  In  State  v.  Haben,  22  Wis.,  660,  an  act 
appropriating  moneys  collected  for  a  primar}'  school  to  the  erection 
of  a  state  normal  school  building  in  the  same  cit}-  was  held  void. 
Other  cases  might  be  cited,  but  it  seems  not  to  be  needful.  They  rest 
upon  the  well  understood  fact  that  these  corporations  are  of  a  two-fold 
character  ;  the  one  public  as  regards  the  state  at  large,  in  so  far  as 
they  are  its  agents  in  government ;  the  other  private,  in  so  far  as 
the}-  are  to  provide  the  local  necessities  and  conveniences  for  their 
own  citizens  ;  and  that  as  to  the  acquisitions  the}*  ma}*  make  in  the"^ 
0  la^EleFcapacit}'  as  mere  corporations,  it  is  neitlier  just,  nor  is  it  cora- 

^^3*^"^     petent,  for  the  legislature  to  take  them  awa}-,  or  to  deprive  the  local 


>^ 


-      -      Y^^_''i  \  I 


r»  » 


"(FSmmunity  of  the  benefit  thereof.  There  may  come  a  time  when  from 
*-^^.  ^  I  necessity  the  state  must  interpose.  The  state  may  change  municipal'* 
^"VAA***^'  boundaries  ;  and  then  a  division  of  the  corporate  property-  may  be 
needful.  The  state  ira}'  take  away  the  corporate  powers,  and  then 
the  property  must  come  to  the  stj  te  as  trustee  for  the  parties  con- 
cerned. In  either  of  these  cases,  undoubtedly,  state  action  becomes 
essential ;  and  the  property  may  be  disposed  of  according  to  the 
legislative  judgment  and  sense  of  justice ;  but  even  then  the  appro- 
priation must  have  regard,  so  far  as  the  circumstances  of  the  case  will 
admit,  to  the  purposes  for  which  the  property  was  acquired,  and  the 
interest  of  those  who  were  corporators  when  the  necessity  for  state 
intervention  arose. 

In   view  of  these  historical  facts,  and  of  these  general  principles, 
the  question  rr  :!urs  whether  our  state  constitution  can  be  so  construed 


9:M 


,0«  1*       C\  .^.■it       ILz  \ 


LE   KOY   V.    IIUELBUT. 


89 


;^Xn7N*j 


>^. 


VyA/'s-^^ 


as  to  confer  upon  the  legislature  the  power  to  appoint  for  the  munici- 
palities, the  officers  who  are  to  manage  the  property,  interests,  and 
rights  in  which  their  own  people  alone  are  concerned.  If  it  can  be,  it  ^^^. 
involves  these  consequences  :  As  there  is  no  provision  requiring  the 
legislative  interference  to  be  upon  any  general  system,  it  can  and  ma}' 
be  partial  and  purely  arbitrary.  As  there  is  nothing  requiring  the 
persons  appointed  to  be  citizens  of  the  locality,  they  can  and  maj'  be 
sent  in  from  abroad,  and  it  is  not  a  remote  possibility  that  self-govern- 
ment of  towns  ma}'  make  way  for  a  government  by  such  influences  as 
can  force  themselves  upon  the  legislative  notice  at  Lansing.  As  the 
municipal  corporation  will  have  no  control,  except  such  as  the  state 
may  voluntarily  give  it,  as  regards  the  taxes  to  be  levied,  the 
buildings  to  be  constructed,  the  pavements  to  be  laid,  and  the 
conveniences  to  be  supplied,  it  is  inevitable  that  parties,  from  mere 
personal  considerations,  shall  seek  the  offices,  and  endeavor  to  secure  1  J  v-i 
from  the  appointing  body,  whose  members  in  general  are  not  to  feel 
the  burden,  a  compensation  such  as  would  not  be  awarded  by  the 
people,  who  must  bear  it,  though  the  chief  tie  binding  them  to  the 
interests  of  the  people  governed  might  be  the  salaries  paid  on  the  one 
side  and  drawn  on  the  other.  As  the  legislature  could  not  be  com- 
pelled to  regard  the  local  political  sentiment  in  their  choice,  and  would, , 
in  fact,  be  most  likely  to  interfere  when  that  sentiment  was  adverse' 
to  their  own,  the  government  of  cities  might  be  taken  to  itself  by  the 
party  for  the  time  being  in  power,  and  municipal  governments  might  \  (^ 
easily  and  naturally  become  the  spoils  of  party,  as  state  and  nationarl  ^f\j  ■  ^ 
offices  unfortunately  are  now.  All  these  things  are  not  only  possible,/ 
FiTTeiitirely  within  the  range  of  probability,  if  the  positions  assumed 
on  behalf  of  the  state  are  tenable.  It  may  be  said  that  these  would 
be  mere  abuses  of  power,  such  as  may  creep  in  under  any  system  of 
constitutional  freedom;  but  what  is  constitutional  freedom?  Has  the 
administration  of  equal  laws  by  magistrates  freely  chosen  no  necessary 
place  in  it?  Constitutional  freedom  certainly  does  not  consist  in  ex- 
emotion  from  governmental  interference  in  the  citizen's  private  affairs ; 
in  his  being  unmolested  in  his  family,  suffered  to  buy,  sell  and  enjoy 
property,  and  generally  to  seek  happiness  in  his  own  way.  All  this 
might  be  permitted  by  the  most  arbitrary  ruler,  even  though  he  allowed 
his  subjects  no  degree  of  political  liberty.  The  government  of  an 
oligarchy  may  be  as  just,  as  regardful  of  private  rights,  and  as  little 
burdensome  as  any  other ;  but  if  it  were  souglit  to  establish  such  a 
government  over  our  cities  by  law,  it  would  hardly  do  to  call  upon  a 
protesting  people  to  show  where  in  the  constitution  the  power  to 
establish  it  was  prohibited ;  it  would  be  necessary,  on  tlie  other  hand, 
to  point  out  to  them  where  and  by  what  unguarded  words  the  power 
had  been  conferred.  Some  things  are  too  plain  to  be  written.  If  this 
charter  of  state  government  which  we  call  a  constitution,  were  all 
there  was  of  constitutional  command;  if  the  usages,  the  customs,  the 
Tuaxims,  that  have  sprung  from  the  habits  of  life,  modes  of  tliought, 


'■'^Kt^tVV 


90 


LE   ROY   V.   HURLBUT. 


methods  of  trying  facts  b)-  the  neighborhood,  and  mutual  responsi1)ility 
in  neighborhood  interests,  the  precepts  which  have  come  from  the 
revohitions  wliich  overturned  tyrannies,  the  sentiments  of  manly  in- 
dependence and  self-control  which  impelled  our  ancestors  to  summon 
the  local  eommunit\-  to  redress  local  evils,  instead  of  relying  upon 
king  or  legislature  at  a  distance  to  do  so,  — if  a  recognition  of  all  tliese 
.were  to  be  stricken  from  the  body  of  our  constitutional  law,  a  lifeless^ 
skeleton  might  remain,  but  the  living  spirit,  that  which  gives  it  force 
and  attraction,  which  makes  it  valuable  and  draws  to  it  the  affections 
of  the  people,  that  which  distinguishes  it  from  the  numberless  con- 
stitutions, so  called,  which  in  Europe  have  been  set  ivp  and  thrown 
down  within  the  last  hundred  years,  many  of  which,  in  their  expres- 
sions, have  seemed  equally  fair  and  to  possess  equal  promise  with  ours, 
and  have  onh-  been  wanting  in  the  support  and  vitalit}-  which  these 
alone  can  give,  —  this  living  and  breathing  spirit,  which  supplies  tho 
interpretation  of  the  words  of  the  written  charter,  would  be  utterly 
lost  and  gone. 

Mr.  Justice  Story  has  well  shown  that  constitutional  freedom  means 
sometliing  more  than  libert}'  permitted  ;  it  consists  in  the  civil  and 
political  rights  which  are  absolutely  guarantied,  assured  and  guarded  ; 
in  one's  liberties  as  a  man  and  a  citizen,  —  his  right  to  vote,  his  right 
to  hold  office,  his  right  to  worship  God  according  to  the  dictates  of  his 
own  conscience,  his  equalit}'  with  all  others  who  are  his  fellow-citizens  ; 
all  these  guarded  and  protected,  and  not  held  at  the  mercy  and  dis- 
cretion of  an}'  one  man  or  of  an}-  popular  majority.  —  Story ^  MisceU 
laneous  Writings,  620.  If  these  are  not  now  the  absolute  right  of  the 
people  of  Michigan,  they  may  be  allowed  more  liberty  of  action  and 
more  privileges,  but  the}*  are  little  nearer  to  constitutional  freedom 
than  Europe  was  when  an  imperial  city  sent  out  consuls  to  govern  it. 
The  men  who  framed  our  institutions  have  not  so  understood  the  facts. 
With  them  it  has  been  an  axiom,  that  our  svstem  was  one  of  checks 
I ajjd-, balances ;  that  each  department  of  the  government  was  a  check 
upon  the  others,  and  each  grade  of  government  upon  the  rest;  and 
tliev  have  never  questioned  or  doubted  that  the  corporators  in  each 
municipality  were  exercising  their  franchises  under  the  protection  of 
certain  fundamental  principles  which  no  power  in  the  state  could  ovef-" 
ride  or  disregard.  Tl}e_state  may  mould  lpcal_  institutions  according 
to  its  views  of  jiolicy  or  expediency' ;  but  local  government  is  matter" 
of  ab8oittts_jjghJ ;  and  the  state  cannot  take  it  away.  It  would  be 
[the  boldest  mockery  to  speak  of  a  city  as  possessing  municipal  libert}' 
where  the  state  not  only  shaped  its  government,  but  at  discretion  sent 
in  its  own  agents  to  administer  it ;  or  to  call  that  system  one  of  con- 
stitutional freedom  under  which  it  should  be  equally  admissible  to 
allow  the  people  full  control  in  their  local  affairs,  or  no  control  at  all. 

What  I  say  here  is  with  the  utmost  respect  and  deference  to  the 
legislative  department;  even  though  the  task  I  am  called  upon  to 
perform  is  to  give  reasons  why  a  blow  aimed  at  the  foundation  of  our 


LE   ROY   V.   HUBLBUT. 


91 


strncture  of  libert}'  should  be  warded  off.  Nevertheless,  when  the 
state  reaches  out  and  draws  to  itself  and  appropriates  the  powers  which 
from  time  immemorial  have  been  localh'  possessed  and  exercised,  and 
introduces  into  its  legislation  the  centralizing  ideas  of  continental 
Europe,  under  which  despotism,  whether  of  monarch  or  commune, 
alone  Has  flourished,  we  seem  forced  back  upon  and  compelled  to  take 
up  and  defend  the  plainest  and  most  primary  axioms  of  free  govern- 
ment, as  if  even  in  Anglican  liberty,  which  has  been  gained  step  by 
step,  through  extorted  charters  and  bills  of  rights,  the  punishment  of 
kings  and  the  overthrow  of  dynasties,  nothing  was  settled  and  nothing 
establislied. 

But  I  think  that,  so  far  as  is  important  to  a  decision  of  the  case* 
before  us,  there  is  an  express  recognition  of  the  right  of  local  author- 
ity by  the  constitution.  That  instrument  provides  {Art.  JTF".,  §  14)  that 
"judicial  officers  of  cities  and  villages  sliall  be  elected  ;  and  all  otherl 
officers  shall  be  elected  or  appointed,  at  such  time  and  in  such  manner 
as  the  legislature  may  direct."  It  is  conceded  that  all  elections  must, 
under  this  section,  be  by  the  electors  of  the  municipalit}'.  But  it  is 
to  be  observed  that  there  is  no  express  declaration  to  that  effect  to 
be  found  in  the  constitution  ;  and  it  may  well  be  asked  what  there  is 
to  localize  the  elections  an}-  more  than  the  appointments.  The  answer 
must  be,  that  in  examining  the  whole  instrument  a  general  intent  is 
found  pervading  it,  which  clearly  indicates  that  these  elections  are  to 
be  by  the  local  voters,  and  not  by  the  legislature,  or  by  the  people  of 
a  larger  territory  than  that  immediately  concerned.  I  think  also  that 
when  the  constitution  is  examined  in  the  light  of  previous  and  con- 
temporaneous history,  the  like  general  intent  requires,  in  language 
equally  clear  and  imperative,  that  the  choice  of  the  other  corporate 
officers,  shall  be  made  in  some  form,  either  directl}'  or  indirectlj-,  by  the 
corporators  themselves. 

The  previous  histor}'  I  have  sufficiently  referred  to ;  and  it  is  a  part 
of  the  public  histor}-  of  the  times  that  the  corn-ention  which  framed  the 
constitution  of  1850  had  in  view  as  prominent  objects,  to  confide  more 
power  to  the  people,  to  make  officers  generall}'  elective,  and  to  take 
patronage  from  the  executive.  "We  see  this  in  the  provisions  for  the 
elections  of  judges,  state  officers,  regents  of  the  university  and  pro- 
secuting attorneys ;  in  the  requirement  that  banking  laws  shall  be 
referred  to  the  people  for  adoption;  in  the  exclusive  control  given  to 
the  supervisors  in  the  settlement  of  claims  against  counties,  and  in 
the  express  provision  that  "  the  legislature  ma}'  confer  upon  organized 
townships,  incorporated  cities  and  villages,  and  upon  the  boaids  of 
supervisors  of  the  several  counties,  such  powers  of  a  local,  legislative 
and  administrative  character  as  the}'  may  deem  proper."  All  these 
were  in  the  direction  of  popularizing  authorit}*.  Even  the  officers  who 
were  to  perform  the  duties  of  master  in  chancer}-  were  required  to  be 
elected.  "When,  therefore,  we  seek  to  gather  the  meaning  of  the  con- 
Btit  Uiou  from  "  the  four  corners  of  the  instrument,"  it  is  impossible. 


U 


'^ 


V-'\-M, 


'pti-\:;^^: 


"■V^ 


92  COMMONWEALTH   V.   MOIR. 

to  conclude  that  the  appointments  here  prescribed,  in  immediate  con- 
nection with  elections  b}'  the  local  voters,  and  b}'  a  convention  intent 
on  localizing  and  popularizing  authority,  were  meant  to  be  made  at 
the  discretion  of  the  central  authorit\-,  in  accordance  with  an  usage  not 
prevalent  since  the  days  of  the  Stuarts,  and  which  even  then  was 
regarded,  both  in  England  and  America,  as  antagonistic  to  libert}'  and 
subversive  of  corporate  rights. 

So  far,  then,  as  the  act  in  question  undertakes  to  fill  the  new  offices 
with  permanent  appointees,  it  cannot  be  sustained,  either  on  general 
principles,  or  on  the  words  of  the  constitution. 

[The  learned  Judge  then  discussed  the  question  whether  the  legis- 
lature might  make  provisional  appointments  to  put  the  new  system 
in  operation,  and  whether  the  first  members  named  in  the  act  would 
rightfuU}-  hold  office  as  provisional  incumbents  until  appointees  were 
named  by  the  common  council.  He  answered  these  questions  in  the 
affirmative,  and  held  that  the  persons  named  in  the  act  were  entitled^ 
to  the  office  as  provisional  appointees. 

Campbell,  C.  J.,  Ciiristiancy,  J.,  and  Graves,  J.,  also  delivered 
opinions.  They  all  concurred  in  the  view  that  the  legislature  could  not 
appoint  members  of  the  board  of  public  works  as  permanent  officers  for 
the  full  term.  On  the  question  whether  the  legislative  appointments 
coiild  be  sustained  as  a  provisional  measure,  Christiancy,  J.,  concurred 
with  CooLEY,  J.,  in  holding  the  affirmative.  Campbell,  C.  J.,  and 
Graves,  J.,  held  C07itra.^\ 


0A^-fc4-  -t-Mrr^  -^u-dt;  ol  AXA'v>-> 


COMMONWEALTH   v.    MOIR.  ^'"T"^    ^u 

1901.     199  A;.  534.  ~  ^r*^ 

Quo  WARRANTO  to  determine  the  right  of  respondent  to  the  office  of        '" 
recorder  of  the  city  of  Scranton.^ 

Mitchell  J.  Municipal  corporations  are  agents  of  the  state,  ifli^  )  ^ 
vested  with  certain  subordinate  governmental  functions  for  reasons  of  (A-'t*-!, 
convenience  and  public  policy.  They  are  created,  governed,  and  the  cre-vN^ 
extent  of  their  powers  determined  by  the  legislature,  and  subject  to  /^Pv* 
change,  repeal,  or  total  abolition  at  its  will.  They  have  no  vested  ,<_  - 
rights  in  their  oflflces,  their  charters,  their  corporate  powers,  or  even  _^ 

their  corporate  existence.  This  is  the  universal  rule  of  constitutional  ,,  * 
law,  and  in  no  state  has  it  been  more  clearly  expressed  and  more  uni-  7j  , 
formly  applied  than  in  Pennsylvania.  In  Philadelphia  v.  Fox^  64  Pa.  \>\  ^ 
169,  180-81,  this  court,  speaking  through  Sharswood,  J.,  said:  "The  ?jv\.^ 
city  of  Philadelphia  is  a  municipal  corporation,  that  is  a  public  corpo- 
ration created  by  the  government  for  political  purposes,  and  having 
subordinate  and  local   powers   of   legislation.  ...  It  is  merely   an 

^  Arguments  and  part  of  opinion  omitted.  —  Ed. 


COMMONWEALTH   V.   MOIR.  93 

agency  instituted  by  the  sovereign  for  tlie  purpose  of  carrying  out  in 
detail  the  objects  of  government,  essentially  a  revocable  agency,  hav- 
ing no  vested  right  to  any  of  its  powers  or  franchises,  the  charter  or 
act  of  erection  (creation  ?)  being  in  no  sense  a  contract  with  the  stateT" 
and,  therefore,  fully  subject  to  the  control  of  the  legislature  who  may 
enlarge  or  diminish  its  territorial  extent  or  its  functions,  may  change 
or  modify  its  internal  arrangements  or  destroy  its  very  existence  with 
the  mere  breath  of  arbitrary  discretion.  .  .  .  The  sovereign  may 
continue  its  corporate  existence  and  yet  assume  or  resume  the  appoint- 
ments of  all  its  officers  and  agents  into  its  own  hands ;  for  the  power 
which  can  create  and  destroy  can  modify  and  change." 

The  fact  that  the  action  of  the  state  towards  fts  municipal  agentsj 
may^beunwise,  unjust,  oppressive,  or  violative  of  the  natural  or  polit-i 
ical  rights  of  their  citizens,  is  not  one  which  can  be  made  the  basis  of  1 
action  by  the  judiciary.     "  The  rule  of  law  upon  this  subject  appears ' 
to  be  that,  except  where  the  constitution  has  imposed  limits  upon  the 
legislative  power,  it  must  be  considered  as  practically  absolute,  whether 
it  operate  according  to  ntitural  justice  or  not  in  any  particular  case,  j 
The  courts  are  not  the  guardians  of  the  rights  of  the  people  of  the^ 
state,   except  as  those  rights  are  secured  by  some  constitutional  pro- 
vision which  comes  within   the  judicial   cognizance.     The  protection 
against    unwise     and    oppressive     legislation,     within    constitutional 
bounds,  is  by  an  appeal  to  the  justice  and  patriotism  of  the  repre- 
sentatives of  the  people.     If  this  fail,  the  people  in  their  sovereign 
capacity    can    correct    the    evil ;    but    courts    cannot     assume    their 
rights.     The  judiciary  can  only  arrest  the  execution  of  a  statute  when 
it  conflicts  with  the  constitution.     It  cannot  run  a  race  of  opinions 
upon  points   of   right,    reason,    and  expediency  with  the  lawmaking 
power.  ...   If  the  courts  are  not  at  liberty  to  declare  statutes  void_» 
because  of  their  apparent  injustice  or  impolicy,  neither  can  they  do  so 
because  they  appear  to  the  mind  of  the  judges  to  violate  fundamental 
prinejpk's  of  republican  government,   unless  it  should  be  found  that, 
these  principles  are  placed  beyond  legislative    encroachment   by   the  1 
constitution."    Cooley   on    Constitutional   Limitations,    ch.    7,~secr  4' 
(6  ed.   1890,  p.^^^l). 

"If  the  legislature  should  pass  a  law  in  plain,  unequivocal  and  ex- 
plicit terms  within  the  general  scope  of  their  constitutional  powers,  I 
know  of  no  authority  in  this  government  to  pronounce  such  an  act 
void,  merely  because,  in  the  opinion  of  the  judicial  tribunals,  it  was 
contrary  to  principles  of  natural  justice,  for  this  would  be  vesting  in 
the  court  a  latitudinarian  authorit3%  which  might  be  abused,  and  would 
necessarily  lead  to  collisions  between  the  legislative  and  judicial  de- 
partments, dangerous  to  the  well  being  of  society,  or  at  least  not  in 
harmonv  with  the  structure  of  our  ideas  of  natural  srovernment." 
Rogers,  J.,  CommomoeaJth  v.  MrClosh-y^  2  Rawle,  374. 

"It  is  no  part  of  our  business  to  discuss  the  wisdom  of  this  legisla- 
tion.    However  vicious  in  principle  we  might  regard  it,  our  plain  duty 


94  COMMONWEALTH   V.    MOIR. 

is  to  enforce  it  provided  it  is  not  in  conflict  with  the  fundamental  law." 
Scowden's  ajyjyeal,  96  Pa.  422.  This  subject  will  be  further  discussed 
with  reference  to  our  own  cases,  in  considering  the  argument  that  the 
statute  violates  the  spirit  of  the  constitution. 

Nor  are  the  motives  of  the  legislators,  real  or  supposed,  in  passing 
the  act,  open  to  judicial  inquiry  or  consideration.  The  legislature  is 
the  lawmaking  department  of  the  government,  and  its  acts  in  that 
capacity  are  entitled  to  respect  and  obedience  until  clearly  shown  to 
be  in  violation  of  the  only  superior  power,  the  constitution.  "  It  is 
urged  that  the  act  before  us  was  not  passed  for  this  purpose  "  (as  a 
police  regulation)  "but  as  its  title  expresses,  'to  provide  for  cases 
where  farmers  may  be  harmed  by  such  railroad  companies  '  and  it  is 
contended  that  this  shows  conclusively  that  it  was  the  design  of  the 
legislature  to  impose  this  new  burden  upon  the  railroad  company  for 
the  benefit  of  the  landholders  and  not  for  the  security  of  the  traveling 
public.  .  .  .  We  cannot  try  the  constitutionality  of  a  legislative  act 
by  the  motives  and  designs  of  the  lawmakers,  however  plainly  ex- 
pressed. If  the  act  itself  is  within  the  scope  of  their  authority  it  must 
stand,  and  we  are  bound  to  make  it  stand  if  it  will  upon  any  intend- 
ment. It  is  its  effect  not  its  purpose  which  must  determine  its  validity. 
Nothing  but  a  clear  violation  of  the  constitution,  a  clear  usurpation  of 
power  prohibited,  will  justify  the  judicial  department  in  pronouncing 
an  act  of  the  legislative  department  unconstitutional  and  void." 
Shar-^wood,  J.,  in  Penna.  R.  R.  Co.  v.  Riblet,  66  Pa.  164,  cited  with 
approval  b}'  the  present  chief  justice  in  Com.  v.  Keory,  198  Pa.  500. 

"The  merits  of  the  act  of  March  22,  1877,  in  relation  to  cities  of 
the  second  class  .  .  .  are  not  a  subject  for  our  opinion.  The  only 
question  before  us  in  these  cases  is  upon  the  power  of  the  legislature 
to  pass  this  law."  Kilgore  v.  Magee^  85  Pa.  401. 

It  ought  not  to  be  necessary  to  restate  principles  so  fundamental, 
nor  to  cite  authorities  so  familiar  and  so  long  established.  But  the 
range  of  the  argument,  and  the  energy  with  which  it  was  pressed  have 
seemed  to  make  it  proper  to  set  forth  clearly  the  only  question  before 
the  court,  the  constitutionality  of  the  statute  in  question.  Much  of  the 
argument  and  nearly  all  of  the  specific  objections  advanced,  are  to  the 
wisdom  and  propriety  and  the  justice  of  the  act,  and  the  motives  sup- 
posed to  have  inspired  its  passage.  With  these  we  have  nothing  to  do, 
they  are  beyond  our  province  and  are  consideration  to  be  addressed 
solely  to  the  legislature.  This  court  is  not  authorized  to  sit  as  a 
council  of  revision  to  set  aside  or  refuse  assent  to  ill-considered,  unwise 
or  dangerous  legislation.  Our  only  dut}'  and  our  only  power  is  to  scru- 
tinize the  act  with  reference  to  its  constitutionality,  to  discover  what  if 
any  provision  of  the  constitution  it  violates.  We  proceed  therefore  to 
the  consideration  of  the  specific  objections  made. 

Of_  tlie  ohjootion  that  the  citizens  are  deprived  of  an  opportunity  of 
electing  the  chief  executive,  it  is  sufficient  to  say  that  there  is  no  con- 


COMMONWEALTH   V.   MOIR. 


95 


stitutional  ri<ilit  of  election  in  reference  to  that  office.  The  leoiislature 
rdight  make  it  permanently  appointive,  and  what  they  could  do  perma- 
nently they  may  do  temporarily.  Philadelphia  v.  Fox^  64  Pa.  1G9.  It 
is  conceded  that  if  the  act  bore  date  of  approval  so  near  the  day  of 
election  that  the  electors  would  have  no  proper  opportunity  to  prepare 
for  the  election,  the  postponement  would  be  free  from  objection.  But 
what  is  a  reasonable  or  proper  opportunity  is  a  question  for  the  legis- 
lature. That  the  prolongatiou  of  a  temporary  appointment  to  a  va- 
cancy beyond  an  election  not  unduly  close  at  hand,  is  unusual  and 
contrary  to  what  citizens  are  accustomed  to  regard  as  their  moral  and 
political  rights,  may  be  conceded,  but  that  does  not  make  it  unconsti- 
tutional. Being  an  exercise  of  a  legal  and  constitutional  right  by 
the  legislature,  they  are  answerable  for  their  action  only  to  their 
constituents. 

The  objections  we  have  been  considering,  and  in  fact  nearly  all  that 
have  been  raised  in  the  case,  are  based  on  the  provisions  of  the  sched- 
ule, rather  than  on  the  permanent  provisions  of  the  act.  Much  legisla- 
tive latitude  must  be  allowed  to  temporary  measures  incident  to  the 
adjustment  of  changes  cf  municipal  system,  and  this  consideration 
deprives  the  objections  of  some  of  the  weight  they  might  otherwise 
have. 

It  is  further  said  that  the  act  is  unconstitutional  because  it  vests  in  the 
governor  the  discretion  of  determining  when  it  shall  become  operative 
by  the  appointment  of  recorders.  This  again  is  an  objection  founded 
on  the  temporary  expedients  of  the  schedule,  and  would  be  sufficiently 
answered  by  the  considerations  already  discussed  under  that  head. 
That  statutes  making  important  changes  in  the  law  should  provide 
definitely  when  they  shall  go  into  effect  is  desirable  but  not  essential. 
The  legislature  may  make  them  operative  from  a  future  date,  or  within 
certain  limitations  make  them  retroactive.  The  present  act  in  its  first 
section  abolishes  the  office  of  mayor  and  substitutes  that  of  recorder. 
This  without  more  would  operate,  as  the  rest  of  the  act  does,  from  the 
date  of  its  approval.  But  to  prevent  a  gap  in  the  government  and  the 
resulting  confusion  of  the  citj'  business,  the  schedule  in  section  2  con- 
tinues the  office  of  mayor  temporarily  until  the  new  office  of  recorder 
is  filled  by  the  governor's  appointment  under  section  1.  There  is 
nothing  in  this  that  is  not  entirely  within  the  reasonable  province  of  a 
schedule  for  the  initial  operation  of  necessary  changes. 

A  further  objection  made  is  that  the  act  removes  an  elected  officer, 
the  mayor,  from  office  during  the  tt'iin  for  which  he  was  elected,  by  a 
merediange  in  the  name  of  the  office.  The  right  1^  grant  a  new 
charter  to  the  city,  imposing  a  new  form  of  government,  is  conceded, 
even  though  the  effect  is  to  abolish  the  office  and  to  de[)rive  the  oflicer 
of  his  place.  But  it  is  argued  that  the  merely  nominal  abolishing  of 
the  office  by  the  substitution  of  one  with  the  same  powers  and  duties 
only  under  a  different  name  is  beyond  the  legislative  power.  It  does 
not  appear  how  this  conclusion  follows.     There  is  no  right  to  a  public 


96  COMMONWEALTH   V.  MOIR. 

office  unless  it  is  under  the  express  protection  of  the  constitution 
(Lloyd  V.  Smith,  176  Pa.  213),  and  such  protection  is  nowhere 
given  to  municipal  officers.  On  the  contrary  the  universal  rule'  is  that, 
unless  otherwise  directed  by  the  new  act,  the  officers  go  out  with  the 
charter  under  which  they  held,  and  the  officers  under  the  new  charter 
take  their  places  whether  under  the  same  or  a  different  name.  Merely 
official  positions,  unprotected  by  any  special  constitutional  provisions 
are  subject  to  the  exercise  of  the  power  of  revision  and  repeal  by  the 
legislature.  Kilgore  v.  Magee,  85  Pa.  401.  "  The  argument  is  that 
the  act  is  unconstitutional  because  it  transfers  the  duties  and  emolu- 
ments of  the  office  of  district  attorney  to  another.  ,  .  .  The  office  of 
district  attorney  is  not  one  of  those  which  are  usually  denominated 
constitutional.  .  .  .  Not  having  been  mentioned  by  the  constitution 
the  legislature  was  left  with  unrestricted  power  to  prescribe  what  the 
duties  of  the  office  should  be,  what  the  length  of  its  tenure,  what  its 
emoluments  and  how  it  should  be  filled.  Having  the  power  to  create, 
they  have  also  the  power  to  regulate  and  even  destroy.  Undoubtedly 
the  legislature  may  at  any  moment  repeal  the  act  of  1850  and  abolish 
the  office.  They  may  provide  a  substitute  for  it."  Strong,  J.,  Com. 
V.  McComhs,  56  Pa.  436.  "As  this  decision  will  deprive  the  respond- 
ent of  a  portion  of  the  term  of  his  office,  some  question  arises  as  to  the 
power  of  the  legislature  to  enact  a  law  having  such  an  effect.  But 
this  is  fully  met  by  the  decision  of  this  court  in  the  case  of  Common- 
tcealth  v.  McCumh,  56  Pa.  436.  We  there  held  as  to  offices  which  are 
legislative  only  and  not  constitutional,  the  power  which  created  them 
may  abolish  or  change  them  at  pleasure  without  impinging  upon  any 
constitutional  right  of  the  possessor  of  the  office,  and  without  violating 
any  duty  of  the  legislative  body."  Com.  ex  rel.  v.  Weii\  165  Pa.  284. 

It  being  conceded  that  the  legislature  may  abolish  municipal  offices 
by  a  change  of  the  charter,  the  question  how  great  or  how  small  th^ 
changes  by  the  new  charter  shall  be,  and  to  what  particulars  they  shajl__ 
apply,  is  one  wholly  for  legislative  consideration.     In  the  act  under 
discussion  the  changes  in  the  general  scheme  of  government  are  many 
and  important.     With  respect  to  the  offices  of  mayor  and  recorder, 
each  being  the  chief  executive  of  a  city,  a  similarity  in  their  powers 
and  duties  is  natural  if  not  essential,  but  the  otlices  are  not  identical 
either  in  substance  or  in  name.     The  recorder  has  far  greater  executive 
powers   than  his  |)re!decessqr  the  mayor,and  yet  lacks  some  of  the 
other  powers  that  the  latter  had.     The  very  argument  of  the  appellants' 
first  noticed,  on  the  impossibility  of  execution  of  the  act,  was  based  on 
the  recorder's  T\;ant  of  the  authority  in  the  passage  of  ordinances  which 
the  mayor  had,  and  which  it  was  contended  was  essential  to  the  opera- 
tion of  the  new  system. 

The  public  interest  of  the  questions  involved,  though  not  always 
their  difficulty,  has  led  us  to  discuss  thus  in  detail  the  specific  objections 
to  the  act  that  the  learning  and  ingenuity  of  eminent  counsel  have 


COMMONWEALTH   V.   MOm.  97 

been  able  to  suggest.  There  remains  one  which  is  based  upon  broader 
and  more  far-reaching  considerations  than  the  others,  though  like  most 
of  them  it  is  directed  against  the  schedule.  Indeed,  the  objections  to 
this  act  may  be  summed  up  in  the  classic  phrase  in  cauda  venenum  est. 
It  is  urged  that  it  violates  the  cpirit  of  the  constitution  in  those  provi- 
sions and  that  general  intent  which  preserves  to  the  people  the  right 
of  local  self-government. 

The  objection  is  serious,  and  there  can  be  no  denial  that  some  of  the 
provisions  of  the  schedule  infringe  upon  what  the  citizens  generally  are 
accustomed  to  regard  as  their  political  rights.  But  our  view  must  be 
confined  closely  and  exclusively  to  the  constitution. 

It  may  be  admitted  that  even  an  act  of  the  legislature  can  so  far 
violate  the  spirit^  of  the  constitution  as  to  be  void,  though  not  trans- 
gressing the  letter  of  any  specific  provision.  But  such  violation  is 
exceptional  and  must  be  made  to  appear  beyond  all  doubt.  Such,  for 
example,  is  the  illustration  given  by  Chief  Justice  THoaiPSON  in  Page 
V.  Allen,  08  Pa.  338,  34:6 :  "  To  illustrate  this  idea,  tlie  executive 
power  of  the  state  under  the  constitution  is  lodged  in  a  governor.  It 
would  be  manifestly  repugnant  to  these  provisions  of  the  constitution 
if  an  act  of  assembly  should  provide  for  the  election  of  two  executives 
at  the  same  election,  yet  it  would  be  unconstitutional  only  by  implica- 
tion, there  being  no  express  prohibition  on  the  subject."  Prima  facie^ 
the  legislative  authority  is  absolute  except  where  expressly  limited. 
This  is  the  uniform  principle  of  all  political  and  legal  views,  and  of  all 
constructions  recognized  by  constitutional  law. 

"  To  me  it  is  as  plain  that  the  general  assembly  may  exercise  all 
powers  which  are  properly  legislative  and  which  are  not  taken  away  by 
our  own  or  by  the  federal  constitution,  as  it  is  that  the  people  have  all 
the  rights  which  are  expressly  reserved.  "We  are  urged,  however,  to 
go  further  than  this,  and  to  hold  that  a  law,  though  not  prohibited,  is 
void  if  it  violates  the  spirit  of  our  institutions  or  impairs  any  of  those 
rights  which  it  is  the  object  of  a  free  government  to  protect,  and  to 
declare  it  unconstitutional  if  it  be  wrong  and  unjust.  But  we  cannot 
do  this.  It  would  be  assuming  a  right  to  change  the  constitution,  to 
supply  what  we  might  conceive  to  be  its  defects,  to  fill  up  every  casus 
omissus,  to  interpolate  into  it  whatever,  in  our  opinion,,  ought  to  have 
been  put  there  by  its  framers."  Black,  C.  J.,  Sharpless  v.  Mayor  of 
Phila.,  21  Pa.  147,  161. 

"However  easy  it  may  be  to  demonstrate  that  public  debts  (sub- 
scriptions to  railroad  and  other  enterprises)  ought  not  to  be  created 
for  the  benefit  of  private  corporations,  and  that  such  a  system  of  mak- 
ing improvements  is  impolitic,  dangerous,  and  contrary  to  the  principles 
of  a  sound  public  morality,  we  can  find  nothing  in  the  constitution  on 
which  we  can  rest  our  consciences  in  saying  that  it  is  forbidden  by 
that  instrument."  Black,  C.  J.,  Moers  v.  City  of  Reading,  21  Pa. 
188.  200. 

"  To  justify  a  court  in  pronouncing  an  act  of  the  legislature  uncon- 


98 


COMMONWEALTH   V.   MOIR. 


stitutional  and  void,  either  in  whole  or  in  part,  it  must  be  able  to  vouch 
some  exception  or  prohibition  clearly  expressed  or  necessarily  implied. 
To  doubt  is  to  be  resolved  in  favor  of  the  constitutionality  of  the  act." 
SiiARSwooD,  C.  J.,  in  Com.  ex  rel.  v.  Butler,  99  Pa.  535. 

"  In  creating  a  legislative  department,  and  conferring  upon  it  the 
legislative  power,  the  people  must  be  understood  to  have  conferred 
the  full  and  complete  authority  as  it  rests  in  and  may  be  exercised  by 
the   sovereign  power  of  any  state,  subject  only  to  such  restrictions  as 
"     the}^  have  seen  fit  to  impose  and  to  the  limitations  which  are  contained 
4u  the  constitution  of  the  United  States.     The  legislative  department 
-,    \is  not  made  a  special  agency  for  the  exercise  of  specially  defined  legis- 
C)'^lative  powers,  but  is  entrusted  with  the  general  authority  to  make  laws 
lat  discretion."  Sterrett,  J.,  in  Powell  v.  Com.,  114  Pa.  265,  293. 
^    -'Whatever  the  people  have  not,  by  their  constitution,  restrained 
themselves  from  doing,  they,  through  their  representatives  in  the  legis- 
lature may  do.     This  latter  body  represents  their  will  just  as  completely 
as  a  constitutional  convention  in  all  matters  left  open  by  the  written 
constitution.     Certain  grants  of  power,  very  specifically  set  forth,  were 
made  by  the  States  to  the  United  States,  and  these  cannot  be  revoked 
or  disregarded  by  state  legislatures.     Then  come  the  specific  restraints 
imposed  by  our  own  constitution  upon   our  own  legislature.     These 
must  be  respected.     But,  in  that  wide  domain  not  included  in  either  of 
these  boundaries,  the  right  of  the  people,  through  the  legislature,  to 
enact  such  laws  as  they  choose,   is  absolute.     Of  the  use  the  people 
may  make  of  this  unrestrained  power,  it  is  not  the  business  of  the 
court  to  inquire."  Dean,  J.,  Com.  ex  rel.  r.  Reeder,  171  Pa.  505,  513. 
"  Nor  are  the  courts  at  liberty  to  declare  an  act  void  because,  in 
their  opinion,  it  is  opposed  to  a  spirit  supposed  to  pervade  the  consti- 
tution, but  not  expressed  in  words.     Where  the  fundamental  law  has 
/pot  limited,  either  in  terms  or  by  necessary  implication,  the  general 
<(  powers  conferred  upon  the  legislature,  we  cannot  declare  a  limitation 
under  the  notion  of  having  discovered  something  in  the  spirit  of  the 
constitution  which  is  not  even  mentioned  in  the  instrument."     Co^y, 
I  Constitutional  Limitations,  ch.  VII,  sec.  VI. 

"It  is  also  a  maxim  of  republican  government  that  local  concerns 
shall  be  managed  in  the  local  districts,  which  shall  choose  their  own 
administrative  and  police  officers,  and  establish  for  themselves  police 
regulations,  but  this  maxim  is  subject  to  such  exceptions  as  the  legis- 
lative power  of  the  state  shall  see  fit  to  make,  and  when  made,  it  must 
be  presumed  that  the  public  interest,  convenience  and  protection  are 
subserved  thereby.  The  state  may  interfere  to  establish  new  regu- 
lations against  the  will  of  the  local  constituency,  and  if  it  shall  think 
proper  in  any  case  to  assume  to  itself  those  powers  of  local  police 
which  should  be  executed  by  the  people  immediately  concerned,  we 
must  suppose  it  has  been  done  because  the  local  administration  has 
proved  imperfect  aud  inefiftcient,  and  a  regard  to  the  general  well-being 
has  demanded  a  change."  Cooley,  Constitutional  Limitations,  ch.  VII, 
sec.  V. 


COMMONWEALTH   V.   MOIR.  99 

These  citations  might  easily  be  multiplied,  but  I  have  not  thought  it 
necessary  to  lengthen  this  opinion  by  going  outside  of  the  text  books 
of  recognized  authority,  and  our  own  decisions.  These  establish  be- 
yond question  the  general  rules  of  constitutional  law,  and  show  that 
nowhere  have  they  been  more  more  uniformly  and- strongly  enforced 
than  in  Penns3^1vania.  Some  of  the  cases  arose  before  the  adoption 
of  the  present  constitution,  but  this  does  not  affect  the  principles  of  the 
decisions  even  though  some  of  the  actual  questions  might  now  be  de- 
cided differently  under  the  provisions  of  the  present  constitution,  for 
■when  the  constitution  has  once  expressly  spoken,  all  further  debate  is 
at  an  end.  The  present  constitution,  as  has  been  said  more  than  once 
by  this  court,  displays  a  strong  intent  to  limit  the  power  of  the  legis- 
lature with  reference  to  interference  in  local  affairs.  As  said  by  our 
Brother  Dean  in  Perkins  y .  Philadelphia^  156  Pa.  554  (5Go)  :  "Assum- 
ing what  was  the  settled  law,  that  the  general  assembly  had  all  legisla- 
tive power  not  expressly  withheld  from  it  in  the  organic  law,  they  (the 
convention)  set  about  embodying  in  that  law  prohibitions  which  should 
in  the  future  effectually  prevent  the  evils  the  people  complained  of. 
Article  3  is  almost  wholly  prohibitory  ;  it  enjoins  very  few  duties,  but 
the  '  thou  shalt  nots  '  number  more  than  sixty."  This  incontrovertible 
evidence  that  the  constitution  is  the  result  of  a  full,  detailed,  exhaust- 
ive consideration  of  the  subject  of  legislative  control  over  merely  local 
affairs,  is  of  itself  a  conclusive  argument  against  any  further  additions 
by  the  courts  to  its  sixty  and  more  expressed  prohibitions.  There  is 
no  sounder  or  better  settled  maxim  in  the  law  than  exprtssio  xadus  ex- 
clusio  est  alterijis J  and  when  the  authorities  which  have  the  right  to 
contror"any~subject,  be  they  only  parties  to  a  private  contract,  or  the 
sovereign  people  in  the  adoption  of  their  constitution,  have  fully  con- 
sidered and  determined  what  shall  be  the  rights,  the  powers,  the  duties 
or  the  limitations  under  the  instrument,  there  is  no  longer  any  room 
for  courts  to  introduce  either  new  powers  or  new  limitations.  To  do 
so  would,  in  the  language  of  Chief  Justice  Black  already  quoted,  "  be 
assuming  a  right  to  change  the  constitution,  to  supply  what  we  might 
conceive  to  be  its  defects,  to  fill  up  every  casus  omissus^  to  interpolate 
into  it  whatever  in  our  opinion  ought  to  have  been  put  there  by  its 
framers." 

The  most  earnest  consideration  of  the  objections  to  the  act  of  1901 
has  convinced  us  that  they  are  not  such  as  authorize  the  courts  to 
declare  the  act  void  for  conflict  with  the  constitution,  but  must  be 
addressed  only  to  the  legislators  and  their  constituencies. 

Judgment  affirmed.      ^ 

McCoLLUM,  C.  J.,  and  Dean  and  Mestrezat,  J.  J.  dissented.  3  p-^y^^^ 


-p—o^ 


"Ory-^^'v-- 


«\, 


100  ARNETT   V.   DOXOHUE. 

ARNETT  V.    STATE  ex  rel.  DONOHUE. 

1907.     168  Ind.  180.  '     '^^  {  ^''^'^""^ 

GiLLETT,  J.^  .  .  .  It  is  argued  that  the  act  of  1897  is  invalid  because  it  Scdr 
places  the  burden  of  supporting  the  police  system  upon  the  municipality,   (n 
without  giving  it  any  control  over  the  expenditures  therefor.     The  case 
of  City  ofEmnsville  v.  State  ex  rel.  (1889),  118  Ind.  426,  4  L.  E.  A.  93,  ^^ 
is  cited  in  support  of  this  contention.     In  that  case,  however,  the  factvv<G 
was  that  the  legislature  had  provided  for  the  creation  of  a  single  board,    V  ^ 
to  which  it  attempted  to  give  the  control  of  the  city's  police  and  fire      ,_ 
departments,  and  the^ct,jtalven  as  awhole,  was  adjudged  invalid,  as 
an  unwarranted  interference  with  the  risrht  of  local  self-government.    O—'' 
The  statute  before  us  is  quite  ditferent  in  principle,  since  it  has  relation     4U> 
only  to  the  department  of  4)QUce.     The  maintenance  of  peace  and  quiet 
aM"~the  suppression  of  crime  and  immorality  are  matters  of  general  in- 
terest, and  to  the  attainment  of  these  ends  the  cities  and  towns  are 
largely  subject  to  legislative   control.     As   the   commonwealth   is  a 
unit  in  respect  to  its  interest  in  such  matters,  the  regulation  thereof  is 
a  proper  subject  of  legislation,  and  whether  cities  and  towns  in  respect 
to  these  matters  shall  have  a  centralized  or  de-centralized  form  of 
government  is  a  political  question  with  which  the  courts  have  nothing  to 
do.     Matters  of  general  interest  are  not  necessarily  required  to  be  sub- 
mitted to  the  judgment  and  discretion  of  the  people  of  the  locality. 
So  far  as  principle  is  concerned,  it  is  no  objection  that  the  State,  while 
imposing  upon  cities  and  towns  the  burden  of  supporting  their  police 
organizations,  designates  its  own  agencies  to  make  its  plan  efficient. 
The  essential  elements  of  what  is  known  as  the  metropolitan  police 
system  in  the  government  of  municipalities  have  been  so  often  vindicated 
as  against  constitutional  objections  that  the  questions  should  now  be 
considered  at  rest.     State  ex  rel.  v.  Kolsem  (1892),  130  Ind.  434,  14 
L.  R  A.  566  ;  State  ex  rel.  v  Fox  (1902),  158  Ind.  126,  56  L.  R.  A. 
893  ;  People  v.  Draper  (1857),  15  N.  Y.  532  ;  Peoples.  Shepard  (1867), 
36  N.  Y.  285  ;  People  v.  Mahaney  (1865),  13   Mich.  481 ;  People  v. 
Common  Council,  etc.  (1873),  28  Mich.  228,  15  Am.  Rep.  202;   Gooch 
V.  ^xefer  (1900),  70  N.  H.  413,  48  Atl.  1100,  85  Am.  St.  637;  Mayor, 
etc.  v.  State  (1859),  15  Md.  376,  74  Am.  Dec.  572  ;  Commonwealth  v. 
Plaisted  (1889),  148  Mass.  375,  19  N.  E.  224,  2  L.  R.  A.  142,  12  Am. 
St.  556;  State  v.    Covington  (1876),  29  Ohio  St.  102;  Police  Corn.  v. 
City  of  Louisville  (1868),  3  Bush  (Ky.),  597;  State  ex  rel.  v.  St.  Louis 
County  Court  (1864),  34  Mo.  546 ;  State  v.  ^imier  (1888),  38  Kan.  578, 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


ST.    LOUIS    POLICE    COMMISSIONERS   V.   ST.    LOUIS   COUNTY   COURT.    101 

17  Pac.  177;  State  ex  rel.  v.  .S'eauev/(1887),  22  Neb.  454,  35  K.  W.  228; 
2  Cooley,  Taxatiou  (3d  ed.),  1295,  129G;  1  Dillon,  Muu.  Corp.  (4th 
ed.),  §  GO;  2  Smith,  Muu.  Corp.,  §  1378.^ 


^  STATE  EX  KEL.  ST.  LOUIS  POLICE   COMMISSIONERS  v.  ST. 

LOUIS   COUNTY   COURT. 

1864.     34  Mo.  546. 

^^    Bates,  J.^    The  General  Assembly,  by  an  act  approved  March  27, 

1861,   "established  within  and  for  the  city  of  St.  Louis,  a  board  of 

police,  to  be  called  the  Police  Commissioners  of  the  city  of  St.  Louis." 

J,,  This  board  was  charged  with  the  duties  within  the  city  of  St.  Louis, 

^  to  preserve  the  public  peace,  prevent  crime  and  arrest  offenders  ;  pro- 

S  .     tect  the   rights   of  persons  and  property ;  guard  the  public   health ; 

(>>ls-<„  preserve  order  at  every  public  election  and   all  public'^eetings  and 

g.       places,  and  on  all  public  occasions;  prevent  and  remove  nuisances  in 

all  streets,  highways,  waters  and  other  places  ;  provide  a  proper  police 

^    .    force  at  every  firefor  the  protection  of  firemen  and  property ;  protect 

rv*<\  emigrants  and  travellers  at  steamboat  landings  and  railway  stations  ; 

see  that  all  laws  relating  to  elections  and  to  the  observance  of  Sunday, 

1       s    and   regulating  pawnbrokers,  gamblers,  intemperance,  lotteries   and 

'  '    ^  lottery  policies,  vagrants,  disorderly  persons,  slaves  and  free  negroes, 

IfJ^  and  the  public  health,  are  enforced ;   and  also  all  laws  and  ordinances 

|o.^^J^^  of  the  city  of  St.  Louis  which  may  be  properly  enforceable  by  a  police 

,    force. 

ii^v\       To  enable  the  board  to  perform  these  duties  it  was  authorized  to  em- 

i^,^.     ploy  a  permanent  police  force,  the  officers  of  which  were  designated 

by  tne  act,  and  the  pay  of  officers  and  ordinary  policemen  fixed  by  it. 

<(p^  The  board  was  authorized   to  provide  such  office  and  furniture  and 

^   r-fr-  such  clerks  and  subordinates  as  it  might  need,  and  to  have  and  use  a 

^^^commou   seal,  and  to  provide  station  houses  and    requisites  for  the 

same.     It  was  also  authorized  in  extraordinary  emergencies  to  raise 

*  "  The  several  towns  and  cities  are  agencies  of  government  largely  under  the  con- 
trol of  the  Legislature.  The  powers  and  duties  of  all  the  towns  and  cities,  except  so 
far  as  they  are  specifically  provided  for  in  the  Constitution,  are  created  and  defined 
by  the  Legislature,  and  we  have  no  doubt  that  it  has  the  right  in  its  discretion  to 
change  the  powers  and  duties  in  officers  appointed  by  the  Governor,  if  in  its  judg- 
ment the  public  good  requires  this,  instead  of  leaving  such  officers  to  be  elected  by 
the  people  or  appointed  by  the  municipal  authorities."  Mortox,  C.  J.  in  Com.  v, 
Plaisted,  148  Mass.  375,  386.  See  Eckerson  y.  Pes  Moines,  137,  la.  452_;  Ratkbone  v. 
Wirth,  1-50  N   Y  459;  Ex  parte  LewTsTlb  Tex.  Cr.  T  ~ 

2  Arguments  omitted.  —  Ed.  r-    rT-~ 

^\x^t:x  v/i.^.  %  Xw.  C^  ^  '    ' — A.*-X>fiOJ-v 


V.    fi 


102    ST.   LOUIS   POLICE   COMMISSIONERS   V.   ST.   LOUIS   COUNTY   COURT. 

such  additional  force  as  the  exigency  may  demand  for  the  preserva- 
tion of  the  public  peace  and  quiet,  and  to  require  the  sheriff  of  the 
county  of  St.  Louis  to  act  under  their  control,  and,  if  ordered  by  them 
to  do  so,  to  summon  the  posse  comitatus,  and  employ  suchpos.se  subject 
to  their  direction.  They  were  also  authorized  to  call  to  their  aid  any 
military  force,  lawfully  organized  in  the  city,  and  they  were  authorized 
to  make  arrests  in  any  part  of  the  State.  Th_e  cjiy  of  St.  Louis  was  de- 
prived  of  all  control  over  the  police.  The  commissioners  were  author- 
ized  to  make  requisitions  upon  the  city  of  St.  Louis,  from  time  to  time, 
for  such  sums  of  moiiey  as  they  might  deem  necessary  for  executing 
their  duties,  which  the  city  was  required  to  pay. 

The    General  Assembly  by  another   act,  approved    December    12, 

1863,  increased  the  pay  of  the  policemen,  and  also  provided  for  an  in- 
crease of  their  number.  This  act  also  required  the  city  of  St.  Louis 
to  pay  the  requisitions  of  the  commissioners  for  the  additional  expense 
and  limited  the  whole  amount  of  appropriations  for  police  purposes  to 
6175,000. 

The   General    Assembly   by  another   act,   approved    February   5, 

1864,  enacted  as  follows : 

.  "  Sec.  3.    The   county  of  St.  Louis  shall  be  chargeable  with  one- 
fourth  of  the  whole  expense  of  the  police  force  of  said  city  of  St. 
^^^\  Louis  for  the  year  1864,  and  for  each  year  thereafter;  and  the  County 

*.*o\.  M*-     Court  of  said  county  shall  from  time  to  time  appropriate  money  out  of 
-'  the   county  treasury  to  meet  that  proportion  of   said    expense;  and 

whenever  the  said  Board  of  Police  Commissioners  shall  need  money  to 
meet  the  expenses  of  said  police  force,  they  shall  make  requisition  upon 
•^   ^  said   county,    for   one-fourth,  and   upon  said   city  for   three-fourths 

thereof." 

On  the  18th  day  of  February,  1864,  the  Police  Commissioners  made 
a  requisition  upon  the  county  of  St.  Louis  for  seven  thousand  dollars, 
for  one-fourth  of  the  said  police  expenses  for  the  months  of  January 
and  February,  in  the  year  1864,  which  the  County  Court  refused  to 
allow  or  to  make  any  appropriation  for.  The  Police  Commissioners 
then  applied  to  this  court  for  a  ^nandamus,  commanding  said  County 
Court  to  pay  said  sum  and  make  an  appropriation  therefor.  A  con- 
ditional mandamus  having  issued,  the  County  Court  made  return  to 
it,  that 

1.  The  act  of  February  5,  1864,  is  in  violation  of  common  right 
and  of  the  Constitution  of  the  State,  in  that  it  appropriates  private 
property  witliout  just  compensation;  that  it  is  retrospective  in  its 
operation,  and  that  it  violates  the  principles  of  taxation  as  laid  down 
in  the  Constitution. 

2.  There  is  no  money  in  the  county  treasury  that  can  legally  be 
appropriated  to  pay  the  same,  the  money  in  the  treasury  having  been 
raised  by  taxation  prior  to  the  passage  of  said  act  and  for  certain 
specific  purposes  set  forth  in  the  order  for  the  assessment  and  levy  of 


ST.  LOUIS   POLICE   COMMISSIONEKS   V.  ST.    LOUIS   COUNTY   COURT.     103 

the  taxes  from  which  such  funds  were  derived,  and  caunot  be  diverted 
from  the  purpose  for  which  they  were  collected ;  that  it  would  be  ne- 
cessary to  levy  a  special  tax  to  pay  said  police  force,  and  no  such 
special  tax  can   be  levied   without   first   making   application   to   the/ 
General  Assembly  for  permission  to  do  so. 

3.  The  sum  of  money  required  is  sought  to  be  recovered  and  applied 
for  the  purpose  of  paying  a  debt  already  incurred  by  said  Police  Com- 
missioners or  the  city  of  St.  Louis  prior  to  the  passage  of  said  act, 
and  in  so  far  said  act  is  retrospective  in  its  nature,  and  is  inoperative 
and  void. 

4.  It  is  not  stated  or  shown  to  this  court  what  the  expense  of  said 
police  force  has  been  or  will  be  for  the  year  1864,  or  that  the  city  of 
8t.  Louis  has  made  the  appropriations  contemplated  by  said  act. 

5.  The  expense  of  said  police  for  the  months  of  January  and  Feb- 
ruary, 1864,  had  already  been  paid  in  the  manner  provided  by  law  at 
the  time  of  the  passage  of  said  act,  and  of  the  issuing  of  said  writ. 

L  In  respect  to  the  first  cause  assigned,  why  a  peremptory  manda- 
mus should  not  issue,  that  is,  that  the  act  of  February  5  is  repugnant 
to  the  Constitution,  —  it  is  said  to  violate  the  Constitution  in  three 
respects,  which  will  be  examined  in  the  order  in  which  they  are  stated. 
The  first  is,  that  it  is  an  appropriation  of  private  property  without 
just  compensation.  I  remark  in  the  first  place  that  the  act  does  not 
designate  any  particular  fund  (described  by  the  source  of  its  deriva- 
tion or  otherwise)  which  is  made  chargeable  with  this  expense.  It 
says  that  the  county  of  St.  Louis  shall  be  chargeable  with  one-fourth 
of  the  expense  of  the  police  force  of  the  city  of  St.  Louis,  and  that  the 
County  Court  shall  appropriate  money  to  pay  it.  It  is  therefore  im- 
material, in  considering  of  the  constitutional  authority  of  the  General 
Assembly  to  pass  the  act  in  question,  to  inquire  how  the  county  has 
acquired  or  may  acquire  the  money  necessary  to  make  the  payments 
required  by  the  act.  The  money  belongs  to  the  county  by  virtue  of 
acts  of  the  General  Assembly,  and  is  expended  under  the  direction  of 
the  same  authority.  Counties  are  subdivisions  of  the  State,  in  which 
some  of  the  powers  of  the  State  Government  are  exercised  b}'  local 
functionaries  for  local  purposes,  in  this  instance  and  generally  the 
functionary  being  the  County  Court.  The  funds  of  the  county  are 
not  strictly  private  property.  They  certainly  do  not  belong  to  the 
citizens  who  may  have  contributed  them.  They  are  rather  public  pro- 
perty, the  property  of  the  State  acquired  from  the  people  and  the, 
property  in  the  county,  and  to  be  used  and  expended  for  the  benefit 
of  the  same  people  and  property.  The  General  Assembly,  havin^  the 
legislative  power  of  the  State,  determines  to  what  local  uses  the  county 
funds  shall  be  applied.  Its  determination  and  direction  may  operate 
unwisely,  harshly  and  unjustly,  but  that  is  no  argument  against  its 
power  to  direct.  It  authorizes  and  causes  the  funds  to  be  collected, 
and  requires  their  expenditure  for  purposes  which  it  determines  to  be 


i  (JVVf 


104    ST.   LOUIS   POLICE   COMMISSIOXEKS   V.   ST.   LOUIS   COUNTY   COUKT. 

,    of  local  interest  and  benefit,  and  its  deteiTnination  is  final.     The  judi- 
\/<3iary  cannot  review  this  determination  of  the  legislative  power ;  cannot 
.""  -•  ■  ■<.       inquire  whether  the  Legislature,  in  directing  an  expenditure  of  county 
"^-^TrtY"^        funds,  judged  correctly  or  not  as  to  its  being  for  the  accomplishment 
of  an  oljject  of  interest  or  advantage  to  the  inhabitants  of  the  county. 
^-wa'  '  In  the  present  case  the  Legislature  has  thought  proper  to  direct  that 

SVt*»!^«-v  the  county  of  St.  Louis  shall  pay  one-fourth  of  the  expenses  of  a  police 
in  the  city  of  St.  Louis,  which  is  wholly  within  and  forms  a  part  of  the 
county  of  St.  Louis.  This  court  cannot  say  that  this  is  not  a  legiti- 
mate use  of  county  funds,  or  that  it  is  a  taking  or  application  of  pri- 
vate property  to  public  use  without  just  compensation,  and  it  certainly 
is  not  an  application  of  property  to  private  use,  for  the^olice  com- 
missioners  are  an  ageucy.of  the  State  Government,  and  required  to 
perform  within  a  specified  locality  some  of  the  most  important  duties 
of  the  government. 

2d.  The  act  is  said  to  be  retrospective  in  its  operation,  in  that  it 
requires  the  county  to  pay  a  proportion  of  the  expense  of  the  police 
force  for  the  whole  year  1864,  when  a  portion  of  that  year  had  elapsed 
at  the  time  the  act  was  passed,  February  5.  No  vested  right  is 
taken  away  or  impaired  by  the  act,  nor  does  it  impair  the  obligation 
of  any  contract.  It  simply  directs  the  application  to  a  particular  pur- 
pose of  funds  collected  by  the  authority  of  the  Legislature,  and  over 
which  the  Legislature  could  exercise  a  power  to  direct  their  application 
within  certain  limits,  which  include  the  object  for  this  act.  The  previous 
acts  of  the  Legislature  which  provided  the  objects  for  which  county 
funds  could  be  expended,  were  at  all  times  subject  to  repeal  or  altera- 
tion, so  as  to  appropriate  the  funds  in  a  manner,  or  to  objects  different 
from  those  before  provided.  No  rights  had  been  vested  under  the  pre- 
vious acts  which  can  be  disturbed  by  this  act.  This  act  is  not  retro- 
spective in  its  operation. 

3d.  The  act  does  not  violate  the  principles  of  taxation  as  laid  down 
in  the  Constitution.  This  point  is  fully  covered  by  the  decision  of 
this  court  in  the  case  of  Hamilton  and  Treat  against  the  St.  Louis 
County  Court,  15  Mo.  3,  which  case  is  also  of  authority  upon  the 
other  points  decided.  The  case  of  Wells  v.  The  City  of  Weston,  22 
Mo.  384,  merely  decides  that  the  General  Assembly  cannot  authorize 
a  municipal  corporation  to  tax  for  its  own  local  purposes  lands  lying 
beyond  the  limits  of  the  corporation,  and  does  not  conflict  with  this 
case. 

II.    As  to  the  second  cause  shown  in  the  return,  it  is  understood  to 

mean,  not  that  there  is  in  fact  no  money  in  the  treasury  to  pay  this 

^  u-o  lf.'^f■v^  requisition,  but  that  as  a  matter  of  law  all  the  money  which  is  in  the 

treasury  was  collected  for  specific  purposes  from  which  they  cannot 

l^^j^A^JS^     be  diverted.     The  specific  purposes  for  which  the  money  was  collected 

\   .^-oi^'^-'      were  those  heretofore  directed  by  the  Legislature,  and  this  act  being 

Vr^  a  later  expression  of  the  will  of  the  Legislature  controls  the  subject, 

and,  so  far  as  it  conflicts  with  previous  acts,  repeals  them. 


rf^ 


CITY   OF   OSIIKOSH   V.    HABEN.  105 

The  county  is  not  a  private  corporation,  but  an  agency  of  the  State 
Government,  and  though  as  a  public  corporation  it  holds  property, 
such  holding  is  subject  to  a  large  extent  to  the  will  of  the  Legislature. 
Wbilstjthe  Legislature  cannot  take  away  from  a  county  its  property,  ^ 

it  has  full  powexto  direct  the  mode  in  which  thej^roperty  shall  be  used      q.  ^ 
for  the  lionofit  of  the  county.  '      ^ 

III.  Tiie  third  cause  assigned  is  included  in  the  previous  allegation, 
that  the  act  is  retrospective  in  its  operation, 

IV.  As  to  the  fourth  cause  assigned,  the  act  does  not  requii*e  that 
the  commissioners  shall  show  to  the  county  at  any  one  time  what  is, 
or  will  be  the  whole  expense  for  a  year,  but  only  that  the  county  shall 
from  time  to  time  make  appropriations  to  pay  the  requisitions  of  the 
commissioners,  thus  showing  an  expectation  that  the  requisitions  will 
be  made  at  several  different  times.  jSTor  does  the  county's  liability  at 
all  depend  upon  the  fact,  that  the  city  has  or  has  not  paid  its  liability. 

V.  The  fifth  cause  is  based  upon  the  same  idea  as  the  third,  and 
has  been  considered  as  it  was  presented  in  the  first. 

No  good  cause  having  been  shown  why  the  county  should  not  pay 
the  requisition  of  the  Police  Commissioners,  let  the  peremptory 
■mandamus  issue. 


Judges  Bay  and  Dryden  concur. 


X<so-  \    >■ —     A  vjO-c-e  ^OTV'.C^^ 


.-It 


>^p 


^i^'^ATE    OF   WISCONSIN,    ex  rel.   BOARD    OF    EDUCATION 
^kCJo^   _snL^^   ^^^   ^^^^   ^^   OSHKOSH   v.    HABEN. 

Q    (^..JiN-^^^^  1868.     22   Wisconsin,  660.^ 

Appeal  from  the  Circuit  Court. 

Alternative  i/ntndamus  to  require  the  cit}' treasurer  of  Oshkosh  to 
pay  orders  drawn  by  the  board  of  education  in  favor  of  Alger,  a  con- 
tractor on  the  high  school  building.  B3-  an  act  passed  in  1866,  the 
board  were  authorized  to  raise,  by  special  tax,  monej'  for  the  erection 
of  a  high  school  building ;  and  were  also  authorized,  if  in  their  judg- 
ment it  was  necessary,  to  appropriate  the  money  so  raised  to  the 
purpose  of  establishing  a  state  normal  school  in  said  city.  The  said 
act  further  empowered  the  board  to  raise,  by  special  tax,  money  for 
the  establishment  of  a  state  normal  school.  Under  a  resolution  of  the 
board,  money  was  raised  by  taxation  for  a  high  school' building,  and 
was  paid  over  to  the  city  treasurer.  The  board  did  not  set  apart  any 
of  this  money  for  a  normal  school,  nor  did  they  raise  any  money  b\' 
taxation  for  a  normal  school.     In  1867,  an  act  was  passed  providing, 

^  Statement  abridged.     Arguments  omitted.  —  Ed. 


106 


CITY   OF   OSHKOSH    V.    HABEN. 


i^'- 


in  substance,  that  $10,000  of  the  mono}'  raised  b}-  the  said  tax  in 
18G6  sliall  be  retained  in  the  city  treasurj-,  and  that  the  purcliase 
mone}'  for  the  site  selected  for  a  normal  school  in  said  city  shall  be 
paid  out  of  said  $10,000  when  the  title  of  said  site  shall  be  approved 
by  tiie  regents  of  the  normal  schools. 

Motion  to  quash  the  writ  of  viandamus.  Motion  denied.  De- 
fendant ap[)ealed. 

Jackson  ib  Ilalsay,  for  appellant. 

Freeman  (jb  Haucocl:,  for  relators. 

Dixon,  C.  J.  This  case  presents  two  questions,  which  may  be 
stated  tlius  :  1.  Was  tlie  defendant  justified  in  refusing  payment  of 
the  orders  set  forth  in  the  alternative  writ?  2.  If  he  was  not,  are  the 
relators  the  proper  parties  to  apply  to  the  court  for  a  writ  of  manda- 
mus to  compel  him  to  pay  them? 

The  answer  to  the  first  question  depends  on  the  validit}'  of  so  much 
of  section  1,  chap.  348,  Private  and  Local  Laws  of  1867,  as  sets 
apart  and  retains  in  the  treasurj-  of  the  city  of  Oshkosh,  or  attempts 
so  to  do,  the  sum  of  ten  thousand  dollars  out  of  the  tax  levied  in  the 
year  186G  under  the  authority-  conferred  by  chapter  236,  Private  and 
Local  Laws  of  186G,  entitled  ''  An  act  to  authorize  the  board  of  educa- 
tion of  the  citj"  of  Oshkosh  to  kny  a  tax  to  build  a  school-house," 
■which  said  sum  of  ten  thousand  dollars,  so  to  be  set  apart  and  re- 
tained, was  to  be  paid  out  as  the  purchase  money  for  the  site  for  a 
normal  school  in  said  cit^*,  to  be  selected  and  the  title  approved  and 
accepted  by  the  board  of  regents  of  normal  schools.  The  tax  levied 
in  the  vear  1866,  of  which  this  sum  of  ten  thousand  dollars  was  a 
portion,  was,  in  the  words  of  the  act  b}-  which  it  was  authorized, 
levied  "to  be  used  for  the  purpose  of  erecting  a  suitable  high  school 
building  in  said  cit}-."  It  was  lawfully  so  levied.  It  is  true  that  the 
board  of  education  of  the  city  of  Oshkosh,  under  whose  direction  the 
lev}'  was  made,  were  authorized  to  raise  a  portion  of  the  sum  or  sums 
specified  in  the  6th  section  of  the  act  "  for  the  purpose  of  aiding  in  the 
establishment  of  a  state  normal  school  in  said  city."  This  authority 
was,  however,  purely  discretionarv  ;  and  as  the  board  of  education 
saw  fit  not  to  raise  an}-  money  for  that  purpose,  the  inquir}-  is  the 
same  as  if  no  such  authority  had  been  conferred.     The  ^ueslion  then 

(is  :  Was  it  competent  for  the  legislature,  without  the  assent  of  the  cit}'^ 
or  its  inhabitants,  thus  to  divert  the  funds  raised  and  in  the  hands  "of 
the  treasurer  for  the  purpose  of  erecting  a  suit£ihle  high  school  build- 
ing, and  to  declare  that  they  should  be  a[)propriated,  not  for  that 
purpose,  but  for  the  purpose  of  purchasing  the  site  for  a  state  normal 
school  in  the  city?  We  are  clearly  of  opinion  that  it  was  not.  It  Ts 
well  settled  as  to  all  matters  pertaining  to  vested  rights  of  property, 
■whether  real  or  personal,  and  to  the  obligation  of  contracts,  that 
municipal  corporations  are  as  much  within  the  protection  of  the 
federal  constitution  as  private  individuals  are.  The  leo:is]ature  cannot 
divest  a  municipal  corporation  of  its  property, 

T 


without  the  consent  of 


-i-*tv?>-^ 


,S^^ 


CITY   OF   OSHKOSH   V.    HABEN.  107      ■     l       '^ 

its   inhabitants,  nor  impair  the  obligation  of  a  contract  entered  into\_     c^^iLr^-» 
wTth  oFin  behalf  of  such  corijoralion.     See  Jlilioaukec  v.  JIilwaukee,\/^  Oe^ 
12  Wis.,  'J3,  and  authorilies  cited.     What  was  the  act  in  question  but  ^    ■ 
a  most  obvious  attempt,  at  the  mere  will  of  the  legislature,  to  deprive 
the  city  of  Oshkosh  of  so  much  money  lawfully  acquired  for  a  proper 
municipal   purpose,    and,    without   the  assent  of   the  inhabitants,   to 
apply  it  to  another  purpose,  not  municipal,  but  one  in  which  all  the 
people  of  the  state  have  a  corauion  interest?     Clearly  no  other  effect     ,>— a   ^y^ 
can  be  given  to  it.     A  state  normal  school,. as  its  name  indicates,  is  a/  }  n 

state  institution  established  for  the  benefit  of  the  people  of  the  entire/      ^^^J^T^ 
state   and  "maintained   by   funds    provided    by    the   state.     This  will     J^^^^^jj', 
readTlj-  appear   frolii^~an  examination    of  the    several   statutes  unde^     V-^f^^^i-— 
which   those  schools  are  organized,  and   which  prescribe  the  powers 
and  duties  of  the  board  of  regent?  of  the  same.     R,  S.  ch.  22  ;  Laws 
of  1859,   ch.  94;  Laws  of   1865,   ch.  537;   Laws    of  18GG,    ch.   116.   . 
The  i-egents  are  appointed  by  the  governor  by  and  with  the  approval  J  T''g*^  -. 
of  the  senate,  and  the  title  of  the  lands,  buildings,  furniture,  books,  I    'V^"""*"'^ 
apparatus  and  all  other  property  and  et!'ects,  is  vested  in  the  board,  I  ^^W"**"^ 
which   has  the  exclusive   management  and  control  of  the  same.     To  j  ^)V^^ 
sa}',   therefore,   that  the   legislature   can,    without   the   assent  of  the     V^ 
proper  municipal  authorities  or  of  the  inhabitants,  take  tlie  mone}'  of  ^ 

the  city  of  Oshkosh  and  a[)propriate  it  to  the  establishment  of  a  state 
normal  school,  is  to  say  that  it  can  take  the  money  of  any  municipal 
corporation,  and  appl}-  it  to  an}-  general  state  purpose.     If  the  act  had 
directed  the  mone}*  in  question  to  be  deposited  in  the  state  treasury] 
as  part  of  the  general  fund  belonging  to  the  state,  or  had  appropri- 
ated it  toward  the  completion  of  tlie  state  capital  now  in  process  of 
construction,   the  violent  nature  of  the  proceeding  might  have  been 
more  manifest,  but  it  would  not  have  been  more  unauthorized.     The 
advantages  incidentally  accruing  to  the  citizens  of  Oshkosh  from  tlie  j_^^^       -*^ 
establisTiment  of  a  state  normal  school  at  that  place,  though  sufficient,  *  y^^-*-^  ^ 
with  the  consent  of  the  legislature,  to  justify  the  citizens  themselves, 
oFHie  "proper  municipal  officers,  in  levying  a  tax  to  aid  in  the  pur- 
chase of  a  site  or  the  erection  of  buildings,  do  not  change  the  nature 
oniie  question  here  presented.     The  tax  so  levied  must  be  witii  the 
assent  of  the  citizens  or  proper  city  officers.     Tlie  legislature  has  no      (t^.^^^ 
power  arbitrarih'  to  impose  such  a  tax,  as  that  would  not  only  be  in 
plain  conflict  with  the  rule  of  uniformity  in  taxation  prescribed  by  the 
constitution,  but  contraiy  to  the  general  principles  of  law  governing 
such  proceedings.     If,  therefore,  the  legislature  cannot  impose  a  tax  v^ 

for  such  a  purpose,  it  follows  that  it  cannot  for  the  same  purpose  r^^.^-^^^^ 
arbltrarilv  appropriate  the  money  of  the  city  already  lawfully  .raised  • 
b}'  taxation  for  another.  As  well  might  the  legislature,  without  the 
assent  of  the  city,  appropriate  the  high  school  building  itself,  after  its 
completion,  for  a  state  normal  school,  as  seize  the  funds  provided  by 
the  citj'  for  tlie  purpose  of  erecting  it.  This,  we  think,  would  be 
regarded  by  ever}-  one  as  wholl}'  unjustified  b}'  any  sound  principle  oi 


•v.  !^ 


Ox^ 


108  DARLINGTON    V.   MAYOR    &C.    OF    NEW   YORK. 

legislation  —  a  mere  act  of  lawless  violence.  The  act  in  question, 
though  the  injustice  of  it  may  not  be  quite  so  apparent,  in  realit}' 
stands  on  no  better  foundation. 

2.  Are  the  relators  the  proper  parties  to  applj"  for  this  writ?  We 
think  not. 

[On  the  latter  ground  the  order  below  was  reversed.] 

-   —  c>J^ 

DARLINGTON   v.   MAYOR   «fec.    OF   NEW  YORK^^' 

1865.     31  iVew  Yori,  164.1  --<rv^  i^ Yv^^;;"^ 

Suit,  in  the  Superior  Court,  under  the  statute  of  April  13,  1S.55 
(Chapter  428),  which  provides  that,  whenever  an}'  property  shall  be  de- 
stroyed or  injured  in  consequence  of  an}'  mob  or  riot,  the  city  or  coun- 
ty in  which  such  property  was  situated  shall  be  liable  to  an  action  by 
the  owner  for  the  damages  so  sustained.  The  statute  further  provides 
that,  whenever  any  final  judgment  shall  be  recovered  against  any  such 
city  or  county,  the  treasurer  of  said  city  or  county  shall,  upon  the 
production  of  a  certified  copy  of  tlie  judgment  roll,  pay  the  amount  of 
such  judgment,  and  charge  the  amount  thus  paid  to  said  city  or  county. 

On  the  trial,  defendants  admitted  the  destruction  of  plaintilfs  per- 
sonal property,  by  a  riotous  assemblage,  on  July  13,  1863. 

Defendants  moved  for  a  nonsuit ;  one  ground  of  the  motion  being, 
that  tlie  effect  of  the  statute  was  to  deprive  the  defendants  of  their 
property  without  due  process  of  law.  The  court  nonsuited  the  plaintiff. 
The  General  Term  made  an  order  reversing  the  judgment  of  nonsuit 
and  directing  a  new  trial.     From  this  order,  the  defendants  appealed. 

t/b/m  K.  Hackett  and  Wm.  Fidlerton^  for  defendants. 

Tlioinas  Darlington,  plaintiff,  in  person. 

Cejyhas  Brainerd  and  James  S.  Stearns^  of  counsel  for  nine  huiidred 
and  fifty  plaintiffs  in  like  cases. 

"TDenio,  C.  J.  [After  deciding  another  point.]  The  other  objection 
is  that  by  force  of  the  act,  if  it  shall  be  executed,  what  is  termed  the 
private  property  of  the  city  may  be  taken  for  a  public  use  without  due 
process  of  law,  and  without  a  provision  for  compensation.  It  cannot 
be  doubted  but  that  the  general  purposes  of  the  law  are  within  the  scope 
of  legislative  authority.  The  legislature  hpve  plenary  power  in  respect 
to  all  subjects  of  civil  government,  which  they  are  not  prohibited 
from  exercising  by  the  Constitution  of  the  United  States,  or  by  some 
provision  or  arrangement  of  the  Constitution  of  this  State.  This  act 
proposes  to  subject  the  people  of  the  several  local  divisions  of  the  State, 
consisting  of  counties  and  cities,  to  the  payment  of  any  damages  to 
property  in  consequence  of  any  riot  or  mob  within  the  county  or  city. 

1  Statement  rewritten.  Aro;nments  omitted  ;  also  the  disseuting  opinion  of  Ingra- 
HAM,  J.,  and  portious  of  the  opinion  of  Denio,  C.  J.  — Ed. 


DARLINGTON   V.   MAYOR   &C.   OF   NEW   YORK. 


109 


The  policy  on  which  the  act  is  framed,  ma}'  be  supposed  to  be,  to  make 
good,  at  the  public  expense,  the  losses  of  those  who  may  be  so  unfor- 
tunate, as  without  their  own  fault  to  be  injured  in  their  property  by 
acts  of  lawless  violence  of  a  particular  kind  which  it  is  the  general 
duty  of  the  government  to  prevent ;  and  further,  and  principally  we 
may  suppose,  to  make  it  the  interest  of  ever}'  person  liable  to  contri- 
bute to  the  public  expenses  to  discourage  lawlessness  and  violence,  and 
maintain  the  empire  of  the  laws  established  to  preserve  public  quiet 
and  social  order.  These  ends  are  plainly  within  the  purposes  of  civil 
government,  and,  indeed,  it  is  to  attain  them  that  governments  are  in- 
stituted ;  and  the  means  provided  b\'  this  act  seem  to  be  reasonably 
adapted  to  the  purposes  in  view.  If  this  were  less  obvious,  the  practice 
of  the  country  from  which  we  derive  so  man}'  of  oar  legal  institutions 
would  leave  no  doubt  on  the  subject.  Laws  of  this  general  character 
have  existed  in  England  from  the  earliest  period.  It  was  one  of  the/  .""  .  " 
institutions  of  Canute  the  Dane,  which  was  recognized  by  the  Saxon  7  JU'^'=4l-« 
laws,  that  when  any  person  was  killed,  and  the  slayer  had  escaped,  the  [ 
ville  should  pay  forty  marks  for  his  death  ;  and  if  it  could  not  be  raised 
in  the  ville,  then  the  hundred  should  pay  it.  "This  irregular  pro- 
vision," says  an  able  author,  "it  was  thought  would  engage  every  one 
in  the  prevention  and  prosecution  of  such  secret  offenses."  (1  Reeve's 
History  of  Eng.  Law,  17.)  Coming  down  to  the  reign  of  the  Norman 
kings,  we  find  in  the  statute  of  Winchester  (13th  ed.,  I,  ch.  1,  p.  1)  a 
provision  touching  the  crimes  of  robbery,  murder  and  arson  —  that  if 
the  country,  i.  e.,  the  jury,  would  not  answer  for  tlie  bodies  of  the 
offenders,  the  people  dwelling  in  the  county  were  to  be  answerable  for 
the  robberies,  and  the  damages  sustained,  so  that  the  whole  hundred 
where  the  robbery  was  committed,  with  the  franchises  thereof,  should 
be  answerable.  It  is  upon  this  statute  that  the  action  against  the  hun- 
dred, for  robberies  committed  therein,  of  which  so  many  notices  are 
met  with  in  the  old  books,  is  grounded.  (Reeve,  vol.  I,  p.  213  ;  Second 
Ins.,  ch.  17,  p.  569.) 

Passing  by  the  statutes  of  subsequent  reigns,  and  particularly  several 
in  that  of  Elizabeth,  in  which  this  remedy  has  been  somewhat  modified 
while  its  principle  is  steadily  adhered  to,  we  come  to  the  7th  and  8th 
Geo.  IV,  ch.  31,  which  was  an  act  for  consolidating  and  amending  the 
laws  of  England,  relative  to  remedies  against  the  hundred.  It  repeals 
several  prior  acts  providing  remedies  against  the  hundred  for  the 
damages  occasioned  by  persons  violently  and  tumultuously  assembled, 
and  enacts  a  series  of  provisions  very  similar  in  effect  with,  and  in 
some  respects  more  extensive  in  their  scope  than  those  of  the  statute 
under  consideration.  As  the  hundreds  were  not  corporations,  the 
action  was  to  be  brought  against  the  high  constable  ;  and  on  judgment 
being  rendered,  the  sheriff  was  to  draw  his  warrant  on  the  county  trea- 
surer for  the  amount  of  the  recovery.  Ultimatel}',  the  money  was  to 
08  collected  by  local  taxation  in  the  hundred  made  liable.  These 
V)rovisions  have  no  direct  bearing  upon  the  present  case,  but  are  re- 


110  DAKLINGTON   V.   MAYOE   &C.    OF   NEW   YORK. 

ferred  to  to  show  that  the  action  in  question  is  based  upon  a  policy 
which  is  coeval  with  the  laws  of  England,  and  one  which  has  been 
constantly  acted  on  in  that  country,  and  hence  that  it  very  clearly 
falls  within  the  general  powers  of  the  legislature. 

As,  however,  the  objection  of  the  defendants  arises  out  of  a  consti- 
tutional restraint,  substantially  identical  with  one  of  the  provisions  of 
Magna  Charta  (eh.  29),  it  is  at  least  a  curious  coincidence,  that  the 
policy  of  compelling  a  local  community  to  answer  with  their  property 
for  acts  of  violence  committed  b}'  others,  has  been  considered  by  the 
English  parliament  as  a  supplement  to,  rather  than  a  violation  of,  the 
Great  Charter.  A 

In  the  statute  called  ArticuU  super  cartam^  Anno  28  Edward  !,(,!  -^  ' 
which  confirmed  the  Great  Charter  and  the  Charter  of  the  Forest,  and 
directed  that  the  same  should  be  firmly  observed  "in  every  part  and 
article,"  it  was  directed  in  terms  that  the  statute  of  Winchester,  which 
gave  a  remedy  against  the  hundred,  for  robberies  committed  in  it, 
should  be  sent  again  into  every  count}'  to  be  read  and  published  four  . 
limes  a  year,  and  kept  in  "every  point  as  strictly'  as  the  two  Great 
Charters,  upon  the  pains  therein  limited."  (Reeve,  vol.  II,  p.  340; 
Coke,  2  Inst,  ch.  17,  p.  369.) 

Assuming  it  to  be  sufBciently  apparent  that  the  statute  in  question  falls 
within  the  general  scope  of  legislative  authoritv,  the  particular  inquiry 
is,  whether  it  violates  the  constitutional  provisions  relied  on  b}'  the 
defendant.  It  is  plain  enough  that  the  suits  which  it  authorizes,  will, 
if  successful,  result  in  requiring  contributions  from  the  tax-payers  of 
/  the  local  communities,  to  make  good  the  losses  of  persons  who  have 
suffered  from  the  acts  of  rioters.  In  that  wa}-,  it  may  be  said  that 
their  property*  may  be  taken.  In  one  sense  it  may  be  conceded  that  it 
is  taken^for  a  public  use;  for  when  the  State  undertakes  to  indemnify 
the  sufferers  from  riots,  the  executing  of  that  dut^*  is  a  public  concern, 
and  the  expenditure  is  on  public  account.  It  is  a  public  use  in  the 
same  sense  as  the  expenditure  of  mone}'  for  the  erection  of  court 
houses  and  jails,  the  construction  of  roads  and  bridges,  and  the  sup- 
port of  the  poor.  It  is  taken  for  an  object  which  the  legislature  has 
determined  to  be  of  public  importance,  and  for  the  interest  of  the  State. 
Private  property*  thus  taken  is  not  seized  by  the  execution  of  the  right 
of  eminent  domain. 

If  it  were  so  considered,  all  contributions  exacted  from  citizens  for 
defraying  the  expenses  of  the  government  and  of  local  administration, 
would,  in  order  to  be  legal,  require  the  return  of  a  precise  equivalent 
to  the  tax  payers  as  a  compensation,  which  would  be  absurd.  Ever}* 
one  will  at  once  see  that  this  cannot  be  so,  and  that  if  it  were,  govern- 
ment could  not  be  carried  on  at  all.  But  no  general  reasoning  is 
necessary,  for  the  subject  has  been  elaborately  considered  and  deter- 
mined in  this  court. 

There  can  be  no  objection  to  imposing  the  burthens  which  shalJ 


DARLINGTON   V.   MAYOR   &C.    OF   NEW   YORK. 


Ill 


arise  in  the  execution  of  the  act,  upon  the  local  division  whcio  the 
riots  take  place,  and  the  losses  were  occasioned.  Tiiis  is  the  case 
witli  all  pul)lic  exactions,  which  from  their  nature  are  local  in  their 
objects,  and  wliich  generally  arrange  themselves  under  the  head  of 
town,  cit}'  or  county-  charges.  If  we  look  at  the  statute  we  are  exam- 
ining, as  resulting  ultimately  in  occasioning  taxation,  for  tlie  means  of 
raising  the  money  which  vvill  be  required  to  carry  out  its  purposes,  the 
foregoing  observations  will  be  all  which  it  seems  to  me  necessary  for 
the  determination  of  this  appeal ;  and  I  am  of  opinion  that  it  should  be 
considered  in  that  light. 

But  it  is  contended  that  the  application  of  the  case  to  the  city  of 
New  York,  raises  a  further  and  different  question.  The  fact  that  it  is 
governed  b}-  a  corporation,  under  a  cliarter  conferring  certain  munici- 
pal rights,  does  not,  of  course,  raise  an}'  distinction.  The  authority 
of  the  legislature  prevails  witliin  the  limits  of  cliartered  cities  and 
villages,  and  the  public  laws  have  the  same  force  there  as  in  the  other 
parts  of  the  State.  Tliat  position  does  not  admit  of  an  argument. 
(TAe  People  v.  Morris,  13  AYend.,  325.) 

The  particular  point  appears  to  be  that  the  form  of  the  remedy 
for  raising  the  mone}-  required  to  pay  individual  losses,  provided  by 
the  act,  leads  to  consequences  which  would  violate  the  constitutional 
provision.  The  party  who  has  sustained  damages  by  a  riot,  may  prose- 
cute the  cit3"  corporation  ;  and  the  act  provides  that  if  he  obtain  judg- 
ment, the  cit\'  treasurer  is  to  pay  the  amount  and  charge  it  to  the  cit}'. 
It  is  argued  that  it  may  happen  that  there  will  be  no  moneys  in  the 
treasury,  or  the  treasurer  may  be  unable  or  unwilling  to  make  the  paj'- 
ment ;  but  the  plaintiff",  having  a  judgment  against  the  corporation, 
mav  cause  an  execution  to  be  levied  upon  its  property.  The  property 
of  the  city,  it  is  further  argued,  is  private  property,  which  the  corpora- 
tion holds  b}'  the  same  title  as  an  individual  or  a  private  corporation, 
and  that  it  is  equally  under  the  protection  of  the  Constitution.  The 
eff"ect  of  the  act,  as  it  is  urged,  therefore,  is  the  same  as  though  the 
property  of  one  designated  private  citizen  should  be  directed  to  be 
seized  and  appropriated  to  pa}'  a  local  public  charge.  This,  it  is  plain, 
could  not  be  justified  under  the  taxing  power  or  an}'  other  head  of  legis- 
lative authority.  The  answer  made  to  this  argument,  in  tiie  printed 
opinion  of  the  Superior  Court,  is,  that  the  method  of  collecting  the 
iil^glllfiiit  by_  application  to  the  treasurer,  is  exclusive,  and  that  prop- 
erty  cannot  be  taken  on  execution  upon  such  judgments.  This  answer 
IS  not  entirely  satisfactory  to  my  mind.  By  permitting  the  party  who 
haol  sustained  damages  to  recover  iud2;ment  in  the  ordinary  course  of 
justice,  without  any  provision  qualifying  the  eff'ect  of  such  judgment,  it 
cannot,  I  think,  have  been  intended  to  withhold  from  him  any  of  the 
legal  rights  of  a  judgment  creditor.  Tlie  most  universal  of  these  rights 
Js  that  of  levying  the  amount  of  the  judgment  against  the  property  of 
the  debtor,  by  the  usual  process  of  execution.  If  it  were  intended  to 
exclude  that  remedy,  it  is  difficult  to  see  why  a  judgment  should  be  per- 


112 


DAELINGTON   V.   MAYOE   &C.   OF   NEW   YOKK. 


rt 


'jr 


mitted  to  be  recovered  at  all.  Without  that  effect  the  judgment  would 
be  illusor3'  in  many  cases,  for  it  would  rarely,  if  ever,  happen  that  there 
would  be  funds  in  the  treasury  adequate  and  applicable  to  the  payment 
of  such  damages  where  they  sliould  be  for  a  considerable  amount.  My 
opinion  is,  that  tlie  judgment  is  of  the  same  force  and  efficacy  as  any 
other  judgment  which  may  be  rendered  against  the  city^  subject,  per-" 
haps,  to  the  duty  of  first  presenting  it  to  tlie  treasurer. 

It  is  plain  enough  that  it  would  not  be  a  judicious  administration  of  the 
affairs  of  a  city  to  permit  its  property  to  be  subjected  to  a  forced  sale 
on  execution  ;  and  hence  it  has  become  a  usual  practice  to  add  to  the 
sums  included  in  tiie  annual  tax  levy  any  amount  for  which  judgments 
have  been  recovered  against  the  corporation,  and  to  authorize  the 
borrowing  of  money,  if  necessary,  in  order  to  pay  such  judgments. 
Instances  of  such  legislation  occur  in  many  of  the  recent  statutes. 
(Laws  of  18G3,  p.  411,  §  6;  id.,  186i,  p.  938,  §  1,  p.  946,  §  5.)  A 
municipal  corporation,  equally  with  a  private  corporation,  may  have  its 
property'  taken  in  execution,  if  payment  of  a  judgment  U  not  otherwise 
made.  I  am  far  from  supposing,  liowever,  that  such  estate,  real  or  per- 
sonal, as  may  by  law,  or  by  authorized  acts  of  the  cit}'  government,  be 
devoted  to  public  use,  such  as  the  pujjiir:  pdifinps.  or  their. furniture  or 
ornaments,  or  the  public  parks  or  grounds,  or  such  as  ma}'  be  legally 
pledged  for  the  payment  of  its  del)t,  can  be  seized  to  satisfy  a  judg- 
ment. Such,  clearly,  cannot  be  the  case,  for  these  structures  are 
public  property,  devoted  to  specific  public  uses,  in  the  same  sense  as 
similar  subjects  in  the  use  of  the  State  government.  The  argument 
that  I  am  examining  supposes  that  the  city  ma}'  possess  other  prop- 
ert}',  held  for  purposes  of  income  or  for  sale,  and  unconnected  with 
an}'  use  for  the  purposes  of  the  municipal  government.  Such  property, 
the  defendants'  counsel  insists,  and  for  the  purpose  of  the  argument  I 
concede,  is  subject  to  be  levied  on  and  sold  to  satisfy  a  judgment  ren- 
dered against  the  city  corporation.  Th_e  true  answer  to  the  position^ 
that  such  seizure  would  be  a  violation  of  tlie  constitutional  protection 
of  private  property  is,  that  it  is  not  private  within  the  sense  of  that 
provision.  City  corporations  are  emanations  of  the  supreme  law  mak- 
ing power  of  the  State,  and  they  are  established  for  the  more  convenient 
government  of  the  people  within  their  limits.  In  this  respect,  corpora- 
tions chartered  by  the  crown  of  England,  and  confirmed  at  the  revolu- 
tion, stand  on  the  same  footing  witli  similar  corporations  created  by 
the  legislature.  Their  boards  of  aldermen  and  councilmen  and  other 
officers  are  as  truly  public  officers  as  the  boards  of  supervisors,  or  the 
sheriffs  and  clerks  of  counties  ;  and  the  property  intrusted  to  their  care 
and  management  is  as  essentially  public  property  as  that  confided  to 
the  administration  of  similar  official  agencies  in  counties  and  towns. 
In  cities,  for  reasons  partly  technical,  and  in  part  founded  upon  mo- 
tives of  convenience,  the  title  is  vested  in  the  corporate  body.  It  is 
not  thereby  shielded  from  the  control  of  the  legislature,  as  the  supreme 
law  making  power  of  the  State.     Let  us  supi)Ose  the  city  to  be  the  owner 


W>J^ 


DAKLINGTON   V.   MAYOR   &C.   OF   NEW   YORK.  113 

of  a  parcel  of  land  not  adapted  to  an}-  municipal  use,  but  valuable  onki  y'*25==!>^ 
for  sale  to  private  persons  for  building  purposes,  or  the  like.     No  one,  I  v,*-^   ■- 
I  think,  can  doubt  but  wliat  it  would  be  competent  for  the  legislature!   •., 
to  direct  it  to  be  sold,  and  the  proceeds  to  be  devoted  to  some  munici-  |  V\7'vv>j^  rCt^N>>. 
pal  or  other  public  purpose,  within  the  cit}',  as  a  court  house,  a  hospital, 
or  the  like  ;   and  3et,  if  the  argument  on   behalf  of  the  defendants  is 
sound,  it  would  be  the  taking  of  private  property  for  public  use  with- 
out compensation,  and  the  act  would  be  void. 

What  has  been  actuallv  done  respecting  such  city  property,  in  the 
present  case,  if  a  judgment  for  riot  damages  has  the  effect  which  the 
argument  supposes,  and  which  I  attribute  to  it,  is  to  render  it  liable  to 
sale  on  execution,  to  satisfy  a  liability  of  the  city  arising  under  the 
riot  act ;  and  this  has  been  done  under  the  express  authority  of 
the  legislature.  The  vice  of  the  argument  of  the  defendant  is,  that  it 
assimilates  the  condition  of  the  city,  in  respect  to  the  property  to 
which  it  has  title,  to  that  of  an  individual  or  a  private  corporation,  and 
denies  to  tlie  legislature  any  power  over  it  which  it  would  not  possess 
over  the  fortunes  of  a  private  citizen. 

In  respect  to  its  powers,  the  corporate  bod}'  is  understood  to  be  the 
trustees  of  the  people  represented  by  the  supreme  legislative  power  of 
the  State,  but  in  regard  to  its  property  it  is  argued  that  there  are  no 
beneficiaries.  The  property,  it  is  insisted,  is  private,  and  hence  the 
legislature  has  no  legitimate  control  over  it. 

But  in  what  sense  can  this  cit}'  property  be  said  to  be  private?     It 
certainly  does  not  belong  to  tlie  mayor  or  any  or  all  of  the  mem.bers  of 
the  common  council,  nor  to  the  common  people  as  individual  propert}'. 
{Hoosevelt  v.  Draper,  23  N.  Y.,  318.)     If  one  of  these  functionaries 
should  appropriate  it  or  its  avails  to  his  own  use,  it  would  be  the  crime 
of  embezzlement,   and  if  one  of  the  peoi)le  not  clothed  with  ofBcial 
station    should    do    the    like,    it    would    be    the   offense    of   larcen}-. 
Sliould  it  be  said   that  like  all  corporate  property',  it  belongs   to  the 
ideal  being,  the  corporation,   and  that  its  title  is  beneficial  and  not 
fiduciary,  that  answer  would  not  avoid  the  difficulty.     Indeed  it  would 
not  be  sound.     A  corporation,    as  such,  has  no  human  wants  to  be 
supplied.     It  cannot  e^t  or  drink,  or  wear  clotliing,  or  live  in  houses. 
It  is  the  representative  or  trustee  of  somebody,  or  of  some  aggregation , 
of  persons.     We  cannot  conceive  the  idea  of  an  aggregate  corporation] 
which  does  not  hold  its  property  and  franchise  for  some  use,  public  or  I 
private.     The  corporation  of  Dartmouth  College   was  held  to  be  the' 
trustee  of  the  donors,  or  of  the  youth  needing  education  and  moral  and 
intellectual  training.     The  corporation  of  New  York,  in  my  opinion,  isnTWyuirvv  ^^'^ 
the  trustee  of  the  inhabitants  of  that  city.     The  property,  in  a  general  I  '-iXSui^'*-*'  ' 
and  substantial,  although   not  a  technical  sense,  is  held  in  trust  for      \yr3i\^^^<^ 
them.     They  are  the  people  of  this  State  —  inhabiting  that  particular 
subdivision  of  its  territory  —  a  fluctuating  class  constantly  passing  out 

8 


114  BULKELEY    V.    WILLIAMS. 

of  the  scope  of  the  trust  b}'  removal  and  death,  and  as  constantly 
renewed  b}'  fresh  accretions  of  population.  It  was  granted  for  their 
use  and  is  held  for  their  benefit.  The  powers  of  local  government  com- 
mitted to  the  corporation  are  precisely  of  the  same  character.  They 
were  granted  and  have  been  confirmed  and  regulated  for  the  good 
government  of  the  same  public,  to  preserve  order  and  obedience  to  law, 
and  to  ameliorate  and  improve  tlicir  condition  and  subserve  their  con- 
venience as  a  community. 

There  are  a  few  cases  which  counten<ince,  to  a  certain  extent,  the 
views  of  the  defendants'  counsel,  whicli  will  be  briefly  noticed.  [I'lie 
learned  Judge  then  commented  upon  Bailey  \.  Mayor  of  Isfexo  York^ 
3  Hill,  531  ;  Brittonv.  The  Mayor,  dbc,  21  Howard  Practice  Rep.  251  ; 
Benson  \.  The  Mayor,  cfcc,  10  Barbour,  223;  Peojjle  y.  Hemes,  37 
Barbour,  440;  and  Atkins  v.  Jiai/dolp/i,  31  Vermont,  226.] 

It  is  unnecessar}'  to  say  whether  the  legislative  jurisdiction  would 
extend  to  diverting  the  city  property  to  other  public  use  than  such  as 
concerns  the  citv,  or  its  inhabitants  ;  for  this  act,  if  the  effect  sugofested 
S^..  *  is  attributed  to  the  judgment  for  riot  damages,  devotes  the  property' 

which  ma\'  be  seized  on  execution  to  legitimate  city  purposes,  namely, 
to  reimbursing  those  who  have  suffered  damages  on  account  of  the  in- 
efficiencv  of  the  cit}'  authorities  to  protect  private  property  from  the 
aggressions  of  a  mob.  I  am  of  opinion  that  the  order  appealed  from 
should  be  affirmed,  on  the  ground  that  the  means  provided  by  the 
statute  to  raise  money  to  pay  for  the  damages  in  question  were  not 
hostile  to  an}'  provision  of  the  Constitution. 

Ingraham,  J.,  dissented.  rt 


f 


STATE   EX   REL.    BULKELEY   v.    WILLIAMS. '"^n  9^^^^ 

bo 


C.C.-       -  -^ 


1896.     68  Conn.  131.1  '^^^J^^J^  ^^rU^ 

Application  for  a  Mrrit  of  ^lanihunus,  to  enforce  the  payment  by  th^jj^ 
Treasurer  of  the  town  ^jf  Glastonbury"of  an  order  drawn  upon  him  by  j^ 
the  Commissioners  of  *he  Connecticut  River  Bridge  and  Highway  Dis- 
trict, for  the  proportionate  share  required  of  the  town,  under  the  Act    ,-, 
of  June  28,  1895,  for  the  maintenance  of  the  highway  under  the  charge  ;^v 
of  the  said  Commissioners. 

In  1887  an  Act  was  passed  by  the  legislature  for  the  purpose  of 
making  a  toll-bridge  across  the  Connecticut  river  a  free  public  highway 
and  throwing  the  burden  of  its  support  on  the  towns  which  would  be 
especially'  benefited  by  such  a  change.  Upon  proceedings  in  the 
Superior  Court  under  the  above  act,  and  after  notice  to  the  towns,  it 
was,  in  1889,  judicially  determined  that  certain  towns,  including 
Glastonbury,  would  be  specially  benefited  ;  and  that  Glastonbury's  pro- 
portion of  the  expense  should  be  ^i''^^.  After  the  toll-bridge  had  thus 
been  converted  into  a  free  pui)lic  highway,  the  legislature  in  1893 
Enacted   that   the    highway,   which    included    the    bridge   and   its   ap- 

*  The  statement  is  abridged,  aud  some  poiuts  iu  the  case  are  omitted.  —  T.n- 


BULKELEY    V.    WILLIAMS.  115 

proacbes,  should  thereafter  be  maintained  b\'  the  State  at  its  expense. 
Subsequently,  while  a  new  bridge  was  being  erected  at  the  expense  ol 
the  State,  the  old  bridge  was  accidentally  destroyed  b}'  fire.     There- 
after, on    May,  24,   18'Jo,   an  Act  was    passed    repealing   tiie  Act  of 
1893,  and  requiring  certain  towns,  including  Glastonbury-,  to  maintain 
in   future   the    highway    across    the   Connecticut  river  where  the  old 
bridge  formerly  was,  with  the  proper  approaches,  and  to  erect  a  new 
bridge  whenever  necessary,  and  maintain  the  same,  contributing  to  the 
expenses  in  the  proportions  established  by  the  judgment  of  1889.     On    ^    j.  ;        i 
June  28,  189.5,  an  Act  was  passed  '•  Creating  the  Connecticut  Riverl  '^Mn  JiA*^^ 
Bridge  and  Highway  District^"     By  this  Act,  Glastonbury  and  four'       A     -y, 
othe"r  towns  were  constituted  a  corporation,  under  the  above  name,  for  ' 

the  construction  and  maintenance  of  a  free  public  highway-  across  the 
Connecticut  river  at  Hartford,   as  described   in  the  decree   of  1889, 
Four  citizens  of  Hartford  and  one  from  each  of  the  other  towns  wereV'VjtA  .  O^'AT-^ 
appointed  commissioners  foj*  said  district^  with  authority  to  maintain  \   ^^^ 
said  free  publuT  highwa}' ;  and,  whenever  public  safety  or  convenience 
ma}'  require,  to  erect  new  bridges  at  the  expense  of  said  towns,  at  a 
cost  not   exceeding  $500,000.     The   board    was  authorized   to   issue  i 
bonds  of  the  district;  and  each  of  the  five  towns,  in  order  to  meet  the  ■ 
principal  and  interest  on  the  bonds  and  to  pa}'  for  the  ordinary  sup-   ,  i^^ 

port  and  maintenance  of  the  highway,  was  required  to  contribute  in  '^•^■"^  fr*.-*  ^- 
certain  proportions  ;  the  share  of  Glastonbury  being  yfy.  The  orders 
of  the  commissioners  for  the  payment  of  mone}'  were  made  obligatory 
upon  the  towns,  and  the  courts  were  empowered  to  enforce  these 
orders  b\'  mandamus.  No  part  of  the  aforesaid  highway  was  within 
the  town  of  Glastonbur}'.        '        "" 

""TnTthe  Superior  Court,  judgment  was  rendered  for  the  relators  and 
the  respondent  appealed. 

Ijewis  E.  Stanton  and  John  R.  Duck,  for  respondent.^ 

Lewis  Sperry  and  George  P.  McLean^  for  relators. 

Baldwin,  J.  .  .  .  The  judgment,  brought  up  for  review  by  this 
appeal,  directed  the  issue  of  a  writ  of  peremptor}"  mandamus,  to  en- 
force the  payment  by  the  treasurer  of  the  town  of  Glastonbury  of  an 
order  drawn  upon  him  by  vote  of  the  Commissioners  for  the  Connecti- 
cut River  Bridge  and  Highway  District  for  y§o  of  the  sum  of  $500. 
required  to  meet  expenses  incurred  by  the  board  for  the  ordinary  sup- 
port and  maintenance  of  the  highway  under  their  charge.  In  behalf 
of  the  town  it  is  contended  that  it  cannot  thus  be  compelled  to  con- 
tribute, at  tlie  dictation  of  officials  not  of  its  own  choosing,  to  the  cost  , 
of  maintaining  a  highwa}'  whichiswholly  outside  of  its  territorial  I  -  - 
bounds.  ""^  ^    \  (pjt!  / 

^Ic  has  undoubtedly  been  the   general  policv  of  the  State  to  leave        — 
the   expense   of  public   improvements    for  highway    purposes    to  the 
determination  of  the  municipal  corporations  within  the  limits  of  which 

*  Arguments  omitted.  —  Ed. 


116 


BULKELEY   V.   WILLIAMS. 


the  bighwaj's  may  be  situated,  and  to  charge  them  onl\'  with  sucli  ob- 
ligations as  may  be  incurred  in  their  behalf  b}'  officers  of  their  own 
selection.  But  when  the  State  at  large  or  the  general  public  have  an 
interest  in  the  construction  or  maintenance  of  such  works,  there  is 
nothing  in  our  Constitution,  or  in  the  principles  of  natural  justice  upon 
which  it  rests,  to  prevent  the  General  Assembly  from  assuming  the 
active  direction  of  affairs  b}'  such  agents  as  it  ma}-  see  fit  to  appoint, 
and  apportioning  whatever  expenses  may  be  incurred  among  such 
municipalities  as  ma}'  be  found  to  be  especially  benefited,  without  lirst 
stopping  to  ask  their  consent.  Norwich  v.  County  Comnnssiontus, 
13  Pick.  60  ;  Rochester  v.  Roberts^  29  N.  H.  360  ;  FhUaddphla  v. 
Field,  55  Pa.  St.  320;  Simon  v.  Rorthup,  27  Or.  487,  40  Pac.  Rep. 
560.  As  against  legislation  of  this  character,  American  courts  gen- 
erallv  hold  that  no  plea  can  be  set  up  of  a  right  of  local  self-govern- 
ment, implied  in  the  nature  of  our  institutions.  People  v.  Drap>er,  15 
N.  Y.  532,  543;  People  v.  Flagg,  46  N.  Y.  401,  404;  Common- 
wealth  V.  Plaisted,  148  Mass.  375,  19  Northeastern  Rep.  224. 

The  Constitution  of  Connecticut  was  ordained,  as  its  preamble  de- 
clares, b}-  the  people  of  Connecticut.  It  contemplates  the  existence  of 
towns  and  counties;  and  without  these  the  scheme  of  government, 
which  it  establisiied,  could  not  exist.  It  secured  to  these  territorial 
subdivisions  of  the  State  certain  political  privileges  in  perpetuity,  and 
among  others  the  election  by  each  county  of  its  own  sheriff,  and  by 
each  town  of  its  own  representatives  in  the  General  Assemblv,  and  its 
own  selectmen  and  such  officers  of  local  police  as  the  laws  might  pre- 
scribe. It  secured  them,  because  it  granted  them  ;  not  because  they 
previously-  existed.  Towns  have  no  inherent  rights.  The}'  have  al- 
waN's  been  the  mere  creatures  of  the  Colon}'  or  the  State,  with  such 
functions  and  such  only  as  were  conceded  or  recognized  by  law. 
Webster  v.  Ilaricinton,  32  Conn.  131.  The  State  possesses  all  the 
powers  of  sovereignty,  except  so  far  as  limited  by  the  Constitution  of 
the  United  States.  Its  executive  and  judicial  powers  are  each  dis- 
tributed among  different  magistrates,  elected  some  for  counties,  and 
some  for  the  State  at  large  ;  but  its  whole  legislative  power  is  vested 
in  the  General  Assembly.  Our  Constitution  imposes  a  few,  and  only 
a  few,  restrictions  upon  its  exercise,  and  except  for  these  the  General 
Assembly,  in  all  matters  pertaining  to  the  domain  of  legislation,  is  as 
free  and  untrammelled  as  the  people  would  themselves  have  been, 
had  they  retained  the  law-making  power  in  their  own  hands,  or  as 
they  are  in  adopting  such  constitutional  amendments  from  time  to 
time  as  they  think  fit.  Pratt  v.  Allen,  13  Conn.  119,  125;  Boot/i  v. 
Toion  of  Woodbury,  32  id.  118,  126.  It  has  not  infrequently,  from 
early  Colonial  days,  made  special  provision  for  particular  higliways  ot 
bridges,  and  in  several  instances  by  the  appointment  of  agencies  of  its 
own  to  construct  or  alter  them  at  the  expense  of  those  upon  whom  it 
thought  fit  to  cast  the  burden.  1  Col.  Rec.  417  ;  5  id.  80  ;  13  id.  605, 
830  ;   1  Private  Laws,  282,  285. 


BULKELEY   V.   WILLIAMS. 


117 


By  legislation  of  this  nature  the  cit}'  of  Hartford  was  recent!}-  com- 
pelled to  contribute  a  large  sum  for  a  separation  of  grades  at  the 
Asylum  street  railroad  crossing,  and  we  held  the  Act  to  be  not  uncon- 
stitutional. Woodruff  V.  Catlin^  54  Conn.  277  ;  Woodruff  v.  ISew 
York  S  K  E.  R.  R.  Co.,  59  id.  63,  83. 

That  so  many  laws  of  this  general  description  have  been  enacted  by 
the  General  Assembh-,  both  before  and  since  the  adoption  of  our 
Constitution,  is,  of  itself,  entitled  to  no  small  weight  in  determining 
whether  they  fall  within  the  legitimate  bounds  of  what  that  instrument 
describes  as  "legislative  power."  Maynard  v.  Hill,  125  U.  S.  190, 
204  ;   Wheeler's  Appeal,  45  Conn.  306. 

One  of  those  to  which  reference  has  been  made  (1  Priv.  Laws,  p. 
285),  required  the  town  of  Granby  to  build  and  maintain  a  bridge 
across  the  Farmington  river,  half  of  which  was  in  the  town  of 
Windsor,  and  was  adjudged  to  be  valid  by  this  court,  notwithstanding 
then  as  now  the  General  Statutes  provided  that  bridges  over  rivers 
dividing  towns  should  be  built  and  maintained  at  their  joint  cost. 
Granby  v.  Thurston,  23  Conn.  416.  There  is  no  principle  of  freei  ^, 
government  or  rule  of  natural  justice  which  demands  that  the  support 
of  highways'  and  bridges  sliall  be  imposed  onh'  on  those  territorial 
subdivisions  of  the  State  in  which  they  are  situated.  If  it  be  requireq 
of  them,  it  is  only  bv  virtue  of  a  statute  law,  which  the  legislature  can 
vary  or  repeal  at  pleasure.  Chidsey  v.  Canton,  17  Conn.  475,  478. 
The  burden  is  one  that  the  legislature  can  put  on  such  public  agencies 
as  it  ma}'  deem  equitable,  and  transfer  from  one  to  another,  from  time 
to  time,  as  it  may  judge  best  for  the  public  interest.  Doio  v.  Wake- 
field, 103  Mass.  267  ;  Agaicam  v.  Hampden,  130  Mass.  528  ;  County 
of  MoUle  V.  Kimball,  102  U.  S.  691,  703  ;  Washen  v.  Bullitt  County, 
110  U.  S.  558. 

The  defendant  urges  that  taxation  and  representation  are  indis- 
solubly  connected  by  the  underlying  principles  of  free  government,  and 
that  this  (the  commission  which  directs  the  affairs  of  the  Bridge  Dis- 
trict and  makes  requisitions  on  the  towns  for  such  funds  as  it  deems 
necessary,  not  having  been  selected  by  them)  is  a  sufficient  defense 
against  the  payment  of  the  order  which  has  been  drawn  upon  him, 
since  it  can  be  paid  only  out  of  moneys  raised  by  town  taxation. 

Taxes  can,  indeed,  under  our  system  of  government,  only  be  im- 
posed by  the  free  consent  of  those  who  pay  them,  or  their  representa- 1'^*^ 
tives  ;  and  for  purposes  which  they  approve.  But  the  inliabitants  of 
these  towns  were  represented  in  the  General  Assembly,  by  which  the 
laws  now  brought  in  question  were  enacted.  The  legislative  power, 
after  defining  the  general  purposes  of  taxation,  to  confer  upon  local 
public  corporations  the  riglit  to  determine  tlie  amount  of  the  levy  within 
the  territory  under  their  jurisdiction,  is  unquestionable;  and  in  its  ex- 
ercise it  is  immaterial  whether  the  corporations,  to  which  that  function 
is  entrusted,  or  between  which  it  is  shared,  be  called  counties  or  towns, 
school  districts  or  bridge  districts.     "When  a  levy  is  voted,  the  action 


^U 


-ir 


118  BULKELEY    V.   WILLIAMS. 

ts  corporate  action,  deriving  its  obligatory  force  wholly  from  the 
authorit}'  of  the  State.  Towns  cannot  tax  their  inhabitants  for  any 
purpose  except  b}'  virtue  of  statute  law.  Tliat  law  for  many  A'ears 
required  them  annualh'  to  tax  for  moneys  to  be  paid  over  to  the  State 
treasurer  for  State  expenditures.  It  now  requires  them  to  tax,  as 
occasion  may  require,  for  monej's  to  be  paid  over  to  the  count}-  treas- 
urer for  count}'  expenditures.  It  can  equally  require  any  town  or 
towns  to  tax  for  moneys  to  be  paid  over  to  the  treasurer  of  a  bridge 
or  highway  district,  in  which  they  are  included,  for  district  expendi- 
tures. Kingman  et  al.,  Petitioners,  153  Mass.,  566,  27  Northeastern 
Rep.  778. 
■v^M^^  It  has  been  suggested  that  in  Colonial  times  it  was  the  right  of  the 

inhabitants  of  every  town,  themselves,  to  order  the  municipal  duties 
assio;ned  to  them  and  choose  the  officers  by  whom  onlv  it  could  be 
placed  under  a  pecuniary  obligation,  and  that  tliis  is  one  of  those 
rights  and  privileges  "  derived  from  our  ancestors."  to  "  define,  secure 
and  perpetuate  "  which  our  Constitution  was  adopted,  and  to  which  its 
preamble  refers.  If  it  can  be  said  that  such  a  right  ever  existed,  it 
was  not  one  of  the  nature  of  those  which  were  described  by  the  framers 
of  the  Constitution.  The}^  were  speaking  of  rights  personal  to  the 
individual,  as  a  citizen  of  a  free  commonwealth ;  civil  as  distin- 
guished from  political ;  and  belonging  alike  to  each  man,  woman  and 
child  among  the  people  of  Connecticut.  Such  of  them  as  they  deemed 
most  essential  the}'  proceeded  to  specify  in  the  Declaration  of  Rights, 
and  here  we  find  asserted  (Art.  1,  §  2)  that  "  all  political  power  is  in- 
hertnt  in  the  people,  and  all  free  governments  are  founded  on  their 
authority  "  and  subject  to  such  alterations  in  form,  from  time  to  time, 
"as  they  may  think  expedient."  If  there  were  arrv  absolute  right  in 
the  inhaliitants  of  our  towns  to  regulate  their  town  finances  and  affaTi-s~" 
which  was  superior  to  all  legislative  control,  it  would  be  a  greaT" 
"  political  power."  It  would  create  an  imperium  in  imperio^  and  in- 
vest a  certain  class  of  our  people  —  those  qualified  to  vote  in  town 
meetings  —  with  the  prerogative  of  defeating  local  improvements  which 
the  General  Assembly  deemed  it  necessary  to  construct  at  the  expense 
of  those  most  benefited  by  them,  under  the  direction  of  agents  of  the 
State,  unless  the  work  were  done  and  its  cost  determined  under  town 
control.  No  set  of  men  can  lay  claim  to  such  a  privilege  under  the 
Constitution  of  Connecticut. 

Nor  is  it  of  any  importance  that  in  1803  the  State  had  taken  the 
maintenance  of  the  bridge  upon  itself  This  was  merely  a  gratuitous 
act,  with  no  element  of  a  contract,  and  gave  rise  to  no  vested  rights, 
except  such  as  might  accrue  from  obligations  on  the  part  of  the  State 
subsequently  assumed  by  virtue  of  its  provisions. 

The  defendant  also  urges  that  the  Act  of  June  28th  violates  the 
^i^th  Amendment  of  the  Constitution  of  the  United  States,  in  that  it 


BULKELEY   V.    WILLIAMS. 


119 


fleprives  the  town  of  Glastonbury  of  property  without  due  process  of 
law,  and  denies  to  it  tiie  equal  protection  of  the  hiws.  No  right,  as 
against  a  State,  to  the  equal  protection  of  the  laws  is  secured  to  its 
municipal  corporations  by^^Js^^^^^^^^'^nt,"  whichcaii  limit  irianTwa}' 
legislation  to  charge  them  witli  puljlic  ol)ligations.  Nor  have^lieTT 
inhabitants,  in  tlieir  caijacit}  of  nieuibers;  of  such  corporations,  any 
greater  rights  or  iruniuuiLies.  New  Orleans  v.  JVew  Orleans  Water 
Works  Co.,  142  U.  S.  79,  93.  No  property  of  tlie  town  of  Glaston- 
bury has  been  or  is  to  be  talien.  Booth  v.  l\mn  of  Woodbury,  32 
Conn.  118,  130;  Railroad  Company  v.  County  of  Otoe,  16  Wall. 
667,  676.  A  duty  to  lay  taxes  for  public  purposes  has  been  imposed, 
and  for  reasons  already  stated,  it  was  competent  to  the  General  As- 
sembly to  create  that  duty,  as  it  was  created.  Tlieir  proceedings  were 
due  proceedings  :  the  process  by  which  it  is  now  sought  to  compel  the, 
defendant  to  pay  the  sum  in  controversy  is  due  process.  The  town\ 
can  found  no  claim,  under  the  Constitution  of  the  United  States,  any 
more  tlian  under  that  of  Connecticut,  to  such  right  of  local  self- 
government  as  precludes  the  General  Assembly  from  exacting  this 
payment,  notwithstanding  the  demand  comes  from  another  municipal 
corporation,  the  Bridge  District,  in  choosing  whose  members,  or  direct- 1 
ing  wliose  affairs,  it  has  had  no  share.  Giozza  v.  Tiernan,  148 
U.  S.  657,  662. 

We  have  spoken  of  the  Bridge  District  as  a  municipal  corporation, 
altliough  it  may  not  answer  the  common  law  definition  of  that  term, 
since  not  composed  of  the  inhabitants  of  any  territory'  as  such.  In 
modern  times  corporations,  both  public  and  private,  have  often  been 
constituted  by  a  union  of  other  corporations.  Such  was  the  United 
States  of  America  after  the  Declaration  of  Independence,  and  until  the 
adoption  of  their  present  Constitution.  Such  are  the  various  counties 
of  this  State,  once  quasi  corporations  and  now  full  corporations,  the 
constituents  of  which  have  always  been  the  several  towns  within  their 
boundaries.  The  power  of  the  Bridge  District  over  the  towns  com- 
posing it  is  no  less  than  it  would  have  been,  had  their  inhabitants  iri- 
dividually  been  made  its  members.  The  district  and  the  towns  are 
alike  agencies  of  the  State  for  governmental  purposes  and7~wliether 
they  be  stvlecT  pulilic  or  municipal  corporations,  their  relations  to  it 
and  to  each  other  are  the  same,  and  equallj-  subject  to  modification  at 
its  pleasure. 

"TTie  defendant  having  refused  to  pay  an  order  lawfully  drawn  upon 
him  in  behalf  of  the  Bridge  District,  the  writ  was  properly  issued 
against  him. 

Torrance,  J.,  and  Fenn,  J.,  concurred, 

Andrews,  C,  J.,  delivered  a  dissenting  opinion   {QS   Conn.  p.  157 
to  p.  177),  in  which  Hameesley,  J.,  conciured. 

't>->-'^  v--rv  V-C  ";--y      ^^-^ 


C*-^^* 


us 


P-.^ 


U-w, 


^ 


^M        A^    I 


120     DUNKIRK,   WARREN    &   TITTSBURGH    RAILROAD    V.    BATCHELLOR. 


\      '^ 


PEOPLE   EX  REL.  DUNKIEK,  WARREN   &   PITTSBURGH  ..^LJ^ 
RAILROAD   V.    BATCHELLOR.  —^-^xat 

1873.    53  N.  Y.  128. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department  in  favor  of  plaintiffs,  entered  upon 
an  order  denying  motion  for  new  trial,  directing  judgment  upon  a 
verdict. 

The  proceeding  originated  on  an  application  by  the  relator  for  a 
mcmdcimus  to  compel  Walker  Parkhurst,  the  predecessor  of  the  de- 
fendant, as  supervisor  of  the  town  of  Stockton,  in  the  county  of  Chau- 
tauqua, to  issue  the  bonds  of  that  town,  pursuant  to  the  provisions  of 
an  act  of  the  legislature  of  this  State,  entitled  "  An  act  to  facilitate 
the  construction  of  the  Dunkirk,  Warren  and  Pittsburgh  Railroad,  and 
to  authorize  towns  in  the  county  of  Chautauqua  to  subscribe  to  the 
capital  stock  of  said  company,"  passed  April  23,  1867,  and  of  the  acts 
amendatory  thereof  and  supplementar}-  thereto. 

On  the  motion  for  a  peremptory  mandamus,  after  hearing  counsel 
for  tlie  respective  parties,  the  application  was  denied,  but  an  alterna- 
tive mandamus  was  directed.  This  was  issued,  and  the  defendant 
made  his  return,  presenting  certain  issues.  To  this  the  relator  replied. 
The  issues  thus  formed  were  tried  at  a  Circuit  Court. 

The  facts  appearing  upon  the  trial,  as  far  as  pertinent  to  the  ques- 
tions discussed  and  the  statute  brought  in  question,  are  sufficiently  set 
forth  in  the  opinion. 

The  jury  rendered  a  verdict  for  plaintiffs.  Exceptions  were  ordered 
to  be  heard  at  first  instance  at  General  Term. 


Grover,  J.^  .  .  .  This  brings  us  to  the  question  whether  a  mandatory 
statute  compelling  a  town  or  other  municipal  corporation  to  become  a^, 
stockholder  in  railroad  or  other  corporation  by  exchanging  its  bonds  for 
stock  upon  the  terms  prescribed  by  the  statute,  without  its  consent  in  any 
way  given,  is  constitutional.  This  is  a  different  question  from  that  de- 
cide<l  by  this  court  in  The  Bunk  of  Rome  v.  The  Village  of  Rome,  18 
N.  Y.  38,  and  in  subsequent  cases.  In  these  the  question  was,  whether 
enabling  statutes  conferring  power  upon  such  corporations  to  contract 
debts  with  their  own  consent  and  investing  the  money  thus  raised  in 
the  stock  of  railroad  corporations  or  of  exchanging  directly  its  bonds 
'  for  such  stock  were  valid.  These  acts  were  held  constitutional  by 
this  court,  but  this  does  not  determine  that  municipal  corporations 
may  be  compelled  by  the  mere  authority  of  the  legislature  to  enter 
into  this  class  of  contracts  and  become  such  stockholders  without 
their  consent  and  against  their  will.  In  The  People  v.  Flagg^  46  N.  Y. 
401,  it  was  held  that  an  act  requiring  the  town  of  Yonkers  without  its 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


^r^^ 


DUNKIRK,    WARREN   &   PITTSBURGH   RAILROAD   V.   BATCHELLOK.     121 

consent  to  issue  bonds  for  raising  money,  which  was  to  be  expended 
in  the  construction  of  highways  in  the  town,  in  the  manner  prescribed 
by  the  act,  was  constitutional.  This  was  so  determined,  upon  the 
ground  that  the  making  and  improving  of  public  highways  and  provid- 
ing the  means  therefor  were  appropriate  subjects  of  legislation;  that 
towns  possess  such  powers  as  are  conferred  by  the  legislature ;  that 
they  ai'e  a  part  of  the  machinery  of  the  State  government  and  perform 
important  municipal  functions,  subject  to  the  regulation  and  control  of 
the  legislature.  In  short,  that  the  act  was  the  mere  exercise  of  the 
unquestioned  power  of  the  legislature  to  determine  what  highways 
should  be  constructed  and  of  the  taxing  power  in  providing  means  to 
defray  the  expense  incurred  in  their  construction.  But  it  is  said  in 
the  opinion  that  if  the  object  of  the  expenditure  was  private,  or  if  the 
money  to  be  raised  was  directed  to  be  paid  to  a  private  corporation, 
which  is  authorized  to  use  the  improvement  for  private  gain,  the  ques- 
tion would  be  quite  different,  and  in  this  respect  there  is  a  limit  beyond 
which  legislative  power  cannot  legitimately  be  exercised.  It  is  mani-/ 
fest  that  the  question  presented  in  the  present  case  was  not  determined 
in  that,  unless  it  shall  be  further  held  that  a  railroad  owned  and  con- 
trolled bj'  a  corporation  and  operated  by  it  for  the  benefit  of  its  stock- 
holders is  a  public  highway  in  the  same  sense  as  the  common  roads  of 
the  country.  The  towns  through  which  the  latter  run  may  be  com- 
pelled to  construct  and  keep  them  in  repair  for  the  common  use  of  the 
public.  The  substantial  question  in  the  present  case  is  whether  they 
may  be  so  compelled  to  construct  and  repair  railroads  owned  and 
operated  b}'  corporations  for  the  benefit  of  the  stockholders.  It  is 
clear  that  they  may  be,  if  they  are  public  highways  in  the  same  sense 
as  common  roads.  It  has  been  uniformly  held  that  the  right  of  emi- 
nent domain  may  be  exercised  so  far  in  behalf  of  a  railroad  corpora-  .  .  i 
tion  as  is  necessary  for  the  construction  and  operation  of  the  road\  l/r^^^'^*'^^  \^ ' 
upon  the  ground  that  the  road  and  its  operations  was  for  a  public  pur- 
pose, and  therefore  the  real  estate  condemned  for  its  use  was  taken 
for  public  and  not  private  use.  But  it  is  equally  clear  that  property 
acquired  by  the  corporation  belongs  to  it  exclusively,  and  its  owner- j 
ship  is  as  absolute  as  that  of  any  private  individual  of  property  belong- 
ing to  him.  It  is  also  clear  that  so  far  as  the  road  is  operated  for  the 
benefit  of  its  stockholders,  the  corporation  is  private.  We  have  then 
an  artificial  being,  created  by  the  legislature,  endowed  with  public 
franchises,  the  absolute  owner  of  property  of  which  it  cannot  be 
deprived  by  legislation  except  for  public  purposes,  carrying  on  busi- 
ness for  the  private  emolument  of  its  stockholders.  TJie  People  v. 
Flagg  determines  that  towns  may  be  compelled  to  provide  for  the 
construction  and  maintenance  of  improvements  of  a  public  character 
exclusively.  But  here  we  have  an  attempt  to  compel  them  to  aid  in 
the  construction  of  a  work  public  in  some  respects,  but  private  in 
others,  of  at  least  equal  importance.  It  is  said  that  municipal  corpora- 
tions are  creatures  of  the'  legislature  and  subject  to  its  control.     In  a 


122      DUNKIRK,   WARREX   &  PITTSBURGH  RAILROAD   V.   BATCHELLOR. 


..fjl" 


itfv>^»&' 


4>^   I 


certain   sense  this  is  true.     They   are  created  by  the  legislature  as 
instrumentalities  of  the  government,    and    so   far   as   legislation    for 
governmental  purposes  is  concerned  are  absolutely  subject  to  its  control. 
The  powers  of  legislation  over  individuals  is  given  to  the  legislature 
for  all  the  purposes  of  government,  subject  to  such  restrictions  as  are 
contained  in  the  Constitution.     Yet  no  one  would  claim  that  an  indi- 
vidual could  be  compelled  by  a  statute  to  exchange  his  note  or  bond 
and  mortgage  with  a  railroad  corporation  for  its  stock,    against  his 
will,  upon  such  terms  as  were  prescribed  in  the  act  or  any  other.     It  is 
within  the  province  of  legislation  to  provide  for  enforcing  the  perform- 
ance of  contracts  when  made ;  but  to  enforce  the  making  of  them  by 
individuals  is  entirely  beyond  it.     We  have  seen  that  municipal  cor- 
porations may  be  compelled  to  enter  into  contracts  for  an  exclusive 
public  purpose;  but  I  think  they  cannot  be  when  the  purpose  is  private. 
This  is  equally  beyond  the  province  of  legislation  in  the  case  of  sucTi 
corporations    as   in  those  of  private  corporations  or  individuals.     In 
OAtkins  v.  The  Town  of  Randolph^  31  Vermont,  226,  it  was  held  that 
an  act  providing  for  the  appointment  of  an  agent  of  the  town  by  the 
county  commissioner,  with  power  to  purchase  liquors  on  the  credit  of 
the   town,    and  to  sell  the  same  for  certain  specified  purposes,    and 
account  for  and  pay  over  the  proceeds  to  the  town   as  prescribed, 
was   unconstitutional;    and  the  town,    not   having   consented   to   the 
appointment  or  ratified  the  contract,    was  not  liable  for  the  liquors 
purchased   upon  its  credit  by  such  agent  pursuant  to  the  act.     This 
judgment  is  based  upon   the  grounds  that  the  legislative  power  over 
municipal  corporations  is  not  supreme,  and  does  not  include  the  power 
of  compelling   them    to   enter   into  contracts  of  a  private  character, 
although  such  contracts  would  conduce  to  the  public  good  by  enabling 
the   government   to   suppress    traffic    in  intoxicating  liquors.     In  the 
Western  Saving  Fund  Society  of  PliiladelpJna  v.  The  City  of  Philadel- 
phia,  31  Penn.   185,  it  was  held  that  when  a  municipal    corporation 
engages   in    things   not  public  in    tlieir  nature,   it  acts   as   a  private 
individual;  and  in  the  same  case,  between  the  same  parties  (id.  175), 
it  was  held  that  it  so  acted  in  supplying  its  inhabitants  with  gas.     In 
Bailey  v.   The  Mayor,  etc.,  3  Hill,  531,  it  was  held  that  a  municipal 
corporation  was  to  be  regarded  as  private  as  to  its  ownership  of  lands 
and  other  property ;  and  that  the  test  whether  powers  exercised  by  a 
municipal  corporation  were  public  or  private  was  whether  they  were 
for  the  benefit  and  emolument  of  the  corporation  or  for  public  purposes  ; 
and  it  was  further  held  that  the  city  of  New  York,  under  the  act  to 
supply  the  city  with  pure  and  wholesome  water  (Laws  1834,  p.  451) 
acted  as  a  private  corporation  and  was  responsible  as  such  for  the 
acts  of  those  appointed  by  the  act,  for  the  reason  that  the  corporation 
had  accepted  of  and  consented  to  the  act.     Surely  a  town  acts  as  a 
private  corporation  in  becoming  a  stockholder  of  a  railroad  corpora- 
tion,   and,    as  such,    interested  in  the  operation  of  the  road  for  the 
benefit   of   the    stockholders.     When   a   municipal   acts  as  a  private 


PEOPKIETOES   OF   MOUNT   HOPE   CEMETERY   V.   BOSTON.  123 

corporation  it  acts  as  an  individual.  In  Taylor  v.  Porter,  4  Hill,  140, 
it  was  tersely  said  by  Bronson,  J.,  that  tlie  power  of  making  bargains 
for  individuals  has  not  been  conferred  upon  any  department  of  the 
government.  In  The  People  v.  Morris,  13  Wend.  325,  the  distinction 
between  the  nature  of  the  action  of  public  and  private  corporations 
is  clearly  given. 

The  judgment  appealed  from  must  be  reversed  and  a  judgment 
rendered  declaring  the  relator  not  entitled  to  a  peremptory  writ,  and 
dismissing  the  proceedings,  with  costs  to  the  appellant.     , 

Church,  Ch.  J.,  Allex  and  Peckham,  JJ.,  concur.     'W^^'*    ' 
FoLGER,  J.,  concurs  in  result.  \  '^x  \  - 

Andrews,  J.,  dissents ;  Rapallo,  J,,  does  not  vote.  '^V      ^0  ^ 


)^ 


PROPRIETORS   OP  MOUNT   HOPE   CEMETERY  v.  BOSTON. 

^^     %A.<>-^Tl-^wX^iri.^  158  J/ass«cA»se«s,  509.1 

Petition  for  a  writ  of  mandamus  to  compel  the  city  of  Boston  to 
convey  Blount  Hope  Cemetery  to  the  petitioning  corporation  in  accord- 
ance with  Statute  1889,  Chapter  265.  Hearing  before  Knowlton,  J., 
>^  who  reserved  the  case  for  the  full  court  on  the  petition,  answers,  and 
such  of  his  findings  as  were  competent  to  be  considered.  The  mate- 
rial facts  are  stated  in  the  opinion. 

W.  Gaston  &  J.   B,  Richardson,  (S.   W.   Creech,  Jr.,   with  them.) 
for  petitioners. 

1\  M.  Bahson  and  .S'.  D.  Charles,  for  respondents. 

Allen,  J.     Over  property  which  a  city  or  town  has  acquired  ancJ  -^  {ix^ 

holds  exchisively  for  purposes  deemed  strictly  pi]|7lin^  that  is,  w-hich 
the  city  or  town  holds  merely  as  an  agency  of  the  State  government  : 
foFTEe^  jDefformance  of  the  strictly  public  duties  devolved  upon  it,  \'-~e>^  r'^^-o-^ 
the  Legislature  may  exercise  a  control  to  the  extent  of  requiring  the   C'^'Co^ 
dty  or  town,  without  receiving  compensation  therefor,    to  transfer 
such  property  to  some  other  agency  of  the  government  appointed  to 
pei;form  similar  duties,  and  to  be  used  for  similar  purposes,  or  per- 
haps for  other  purposes  strictly  public  in  their  character.     Thus  much    "Z^CITIl 
is  admitted  on  behalf  ..i  the  city,  and  the  doctrine  is  stated  and  illus- 
trated in  many  decisions.      Wei/mouth  &  Braintree  Fire  District  v. 
Count)/  Commissioners,  108  Mass.  142.      Whitney  y.  Stoic,  111  Mass. 
368.     Rawsonx.  Spencer,  113  Mass.  40.      Stone  v.  Charlestoivn,  114 
Mass.  214.     Kingman,  petitioner,  153  Mass.   566,  573.      Meriwethet- 
V.  Garrett,   102  U.   S.   472.     Maijor,    &c.   of  Baltimore  v.   State,  15 
Md.  376. 

By  a  quite  general  concurrence  of  opinion,  however,  this  legisla- 

^^  1  Statement  abridged.    Part  of  opinion  omitted.  —  Ed. 

l5<ui»  -tU.-^  ci-c^t^-    -i^  ,  •         .^sn  dLi^J(ft>\^^M^   u^-C'^v-w^ 


124  PEOPEIETOKS    OF   MOU^'T    HOPE    CEMETERY   V.   BOSTON. 

r^i  rtive  power^of^  control  is  not  universal,  and  does  not  extend  to  property 

^  acquired  by  a  city  or  town  for  special  purposes  not  deemed  strictly 

'C\'^'^  I  and  exclusively  public  and  political,  but  in  respect  to  which  a  cit^ 

1  or  town  is  deemed  rather  to  have  a  right  of  private  ownership,  of 

\  which  it  cannot  be  deprived   against  its  will,  save   by  the   right  of 


^^  ^  ,     eminent  domain   with  payment  of  compensation.     This  distinction 
,^A  jT^    made  of  the  kinds  of  property  which  will  fall  within  it,  because  in 


iA'*      ^ju/T*  "^^  deem  to  be  well  founded,  but  no  exact  or  full  enumeration  can  be 


»j*»'''*!^p>'^  'different  States  similar  kinds  of  property  may  be  held  under  different 
laws  and  with  different  duties  and  obligations,  so  that  a  kind  of 
property  might  in  one  State  be  held  strictly  for  public  uses,  while  in 
another  State  it  might  not  be.  But  the  general  doctrine  that  cities 
and  towns  may  have  a  private  ownership  of  property  which  cannot 
be  wholly  controlled  by  the  State  govei-nment,  though  the  uses  of  it 
may  be  in  part  for  the  benefit  of  the  community  as  a  community,  and 
hot  merely  as  individuals,  is  now  well  established  in  most  of  the 
jurisdictions  where  the  question  has  arisen.  Board  of  Comviissiontrs 
v.  Lucas,  93  U.  S.  108,  114,  115.  Moimt  Pleasant  v.  Beckwith^ 
100  U.  S.  514,  533.  Railroad  Co.  v.  Ellerman,  105  U.  S.  166,  172. 
Cannon  v.  Neiv  Orleans,  20  "Wall.  577.  Mayor,  &c.  of  New  York 
V.  Second  Avenue  Railroad,  32  N.  Y.  261.  People  v.  Batchellor ,  53 
N.  Y.  128.  Peojyle  v.  O'Brieti,  111  N.  Y.  1,  42.  Webb  v.  MoT/or, 
&c.  of  Neiv  York,  64  How.  Pr.  10.  Montpelier  v.  East  Montpelierj 
29  Vt.  12.  Western  Saving  Fund  Society  v.  Philadelphia,  31  Penn. 
St.  .175.  People  v.  Detroit,  28  Mich.  228,  235,  236,  238.  Peoi^le  v. 
Hurlhiit,  24  Mich.  44.  Detroit  v.  Detroit  &  Howell  Plank  Road,  43 
Mich.  140.  Thompson  v.  Moran,  44  Mich.  602.  Louisville  v.  Uni- 
versity of  Louisville,  15  B.  Mon.  (Ky.  )  642.  Richland  v.  Lawrence, 
12  111.  1.  People  v.  Mayor,  &c.  of  Chicago,  51  111.  1.  Grogan  v. 
San  Francisco,  18  Cal.  590.  Hewison  v.  New  Haven,  37  Conn.  475. 
The  same  conclusion  is  arrived  at,  after  a  full  and  clear  discussion 
of  the  subject,  in  Dillon,  Mun.  Corp.  (4th  ed.)  §§  66-68,  and  notes. 
See  also  Cooley,  Taxation,  688. 

In  this  Commonwealth  the  question  has  not  directly  arisen  in 
reference  to  the  power  of  the  Legislature  to  compel  a  transfer  of  the 
property  of  a  city  or  town,  but  the  double  character  of  cities  and 
towns  in  reference  to  their  duties  'and  liabilities  has  very  often  been 
adverted  to.  When  a  city  or  town  acts  merely  as  an  agent  of  the 
State  government  in  performing  duties  for  the  general  benefit,  it  is 
usually    held   free   from    liability    to   persons    who   sustain   injuries 

ir^^    \       through  negligence,  except  in  the  case  of  defective  highways,  which 

,,,.j-«u<^/  constitute  an  exception  to  the  general  rule.  But  in  other  cases, 
where  an  element  partly  commercial  comes  in,  a  liability  is  usually 
enforced.  Tindley  v.  Salem,  137  Mass.  171,  172,  and  cases  cited. 
Worden  v.  New  Bedford,  131  Mass.  23.     Bailey  v.  Mayor,  &c.  of  New 

t^,^.^  ^\t       ^  York,  3  Hill   (N.  Y.),   531.     In   such  cases,    the  ultimate  question 
'j^  l1^  I  usually  is,  Did  the  Legislature  mean  that  the  city  or  town,  or  other 


PKOPRIETORS   OF  MOUNT   HOPE   CEMETERY   V.    BOSTON". 


125 


creature  of  statute,  should  be  liable  for  negligence,  or  did  it  not? 
Howard  v.  Worcester^  153  Mass.  426.  SoutitamjAon  &  Itch'ui  Bridfje 
V.  Soxithampton,  8  El.  &  Bl.  801,  812.  Cowley  v.  Mayor,  &c.  of 
Sunderland,  6  H.  &  N.  565,  57-3.  Mersey  Docks  v.  Gihhs,  11  H.  L. 
Cas.  686,  707,  709,  710,  721.  But  in  determining  this  question 
courts  make  a  discrimination  in  respect  to  the  character  of  the  duties 
and  of  the  property  which  are  involved.  Nowhere  else  has  this 
ground  of  distinction  been  more  often  or  more  strongly  insisted  on 
than  in  Massachusetts.  See  cases  cited  in  Tindley  v.  Salem,  137 
Mass.  171,  174;  Pratt  v.  Weymouth,  147  Mass.  245,  254;  Neff  v. 
Wellesley,  148  Mass.  487,  493;  Lincoln  v.  Boston^  148  Mass.  578; 
Curraii  v.  Boston,  151  Mass.  505,  508.  In  the  recent  case  of  Merri- 
mack River  Savings  Bank  v.  Lowell,  152  Mass.  556,  we  had  occa- 
sion to  make  an  analogous  discrimination  between  the  general  duty 
which  the  city  of  Lowell  was  under  to  furnish  water  on  equal  terms 
to  all  its  inhabitants,  and  the  particular  undertaking  to  furnish 
water  for  a  year  to  an  individual  who  had  paid  a  year's  rates  in 
advance. 

In  the  case  before  us,  we  have  to  determine  whether  the  title  of  the 
city  of  Boston  to  the  INIount  Hope  Cemeterj^  is  subject  to  legislative 
control,  and  this  involves  an  inquiry  to  some  extent  into  the  usages 
and  laws  in  this  Commonwealth  relating  to  bur^'ing  grounds,  with  a 
view  of  ascertaining  whether,  in  the  ownership  of  such  property, 
towns  have  heretofore  been  regarded  or  have  acted  merely  as  agencies 
uf  the  State  government 

[After  a  very  full  statement  as  to  the  usages  and  legislation  of  the 
State,  the  opinion  proceeds:] 

Such  being  the  laws  and  usages  of  the  Commonwealth  before  the 
time  when  the  city  of  Boston  made  its  first  purchase  of  the  Mount 
Hope  Cemetery,  the  cit}-,  by  St.  1849,.  c.  150,  was  "  authorized  to 
purchase  and  hold  land  for  a  public  cemetery  in  any  town  in  this 
Commonwealth,  and  to  make  and  establish  all  suitable  rules,  orders, 
and  regulations  for  the  interment  of  the  dead  therein,  to  the  same 
extent  that  the  said  city  of  Boston  is  now  authorized  to  make  such 
rules,  orders,  and  regulations  for  the  interment  of  the  dead  within 
the  limits  of  the  said  city." 

Before  any  purchase  u'^der  this  statute  was  made,  a  general  statute 
was  passed  which  included  Boston,  St.  1855,  c.  257,  §  1,  providing 
that  "  Each  city  and  town  in  the  Commonwealth  shall  provide  one  or 
more  suitable  places  for  a  burial  ground,  within  which  the  bodies  of 
persons  dying  within  their  respective  limits  may  be  interred,"  and 
forbidding  the  use  for  the  burial  of  the  dead  of  any  land  in  an}'  city 
or  town'  other  than  that  already  used  or  appropriated  for  that  pur- 
pose, without  permission.  It  also  was,  and  long  had  been,  the  dutv^ 
of  the  overseers  of  the  poor  of  each  town  to  bury  paupers  and  indi- 
gent strangers  dying  therein.  St.  1793,  c.  59,  §§  9,  13.  Rev.  Sts. 
c.  46,  §§  13,  16.      (See  also,  for  later  statutes  on  the  same  subject, 


f  r 


126  PKOPKIETOllS    OF   M  3UNT    HOPE    CEMETERY  V.    BOSTON. 

Gen.  St3.  c.  70,  §§  12,  15;  Pab.   Sts,  c    84,  §§  14,  17,  enlarging  their 

duties.)     Being  under  these  positive  du*^ies,    and    having  authority 

K  >under  St.  1849,  c.  150,  to  go  outside  of  the  city  limits  for  a  burial 

(JL/^^"^^!     ground,  the  city  of  Boston  purchased  the  lurgest  portion  of  the  land 

\ff  >',  ,-*6f  the  Mount  Hope  Cemetery  in  West  Roxbiirv  in  1857,  and  has  since 

^/-''^'^iC^     jiadded  to  the  same  at  various  times,  and  has  received  large  sums  from 

■s/y^*^^^^'4the  sale  of  lots  or  burial  rights,  and  has  expanded  large  sums  iiTThe 

'"  ^      (care   and    management  thereof,  and   about   forty   acres   still  remain" 

^■^'■'-  unsold.     There   is   no  suggestion  in  argument  that  in  any  of  these 

particulars  it  has  acted  beyond  its  powers. 
i/o.'"'  \      We  are  not  aware  that  the  sale  of  burial  rights  in  this  cemetery  haa 

lever  been  limited  to  inhabitants  of  Boston.  No  such  limitation  is 
'.is  l/\  lexpressed  in  the  ordinance,  but  sales  may  be  made  to  any  person  or 
'^j^y^r^  persons.  Rev.  Ordinances,  '1885,  c.  47,  §  4.  By  St.  1877,  c.  fi9, 
§  7,  re-enacted  in  Pub.  Sts.  c.  82,  §  15,  towns  may  seU  exclusive 
burial  rights  to  any  persons,  whether  residents  of  the  town  or  other- 
wise, in  their  cemeteries;  and  this  right  extends  to  cities.  Pub.  Sts. 
c.  3,  §  3,  cl.  23.  There  can  be  no  doubt  that  the  city  held  ihis  ceme- 
tery not  only  for  the  b  irial  of  poor  persons,  but  with  the  right  to 
make  sales  of  burial  rights  to  any  persons  who  might  wish  to  pur- 
chase them,  whether  residents  or  non-residents.  With  these  duties, 
and  also  with  these  rights  and  privileges,  the  city  has  acquired  and 
improved  this  property.  It  is  not  as  if  the  land  had  been  procured 
and  used  exclusively  as  a  place  for  the  free  burial  of  the  poor,  or  of 
inhabitants  of  Boston.  In  addition  to  these  purposes,  the  city  has 
been  enabled  to  provide  a  well  ordered  cemeterj',  with  lots  open  tc 
purchase,  under  carefully  prepared  rules  and  regulations,  and  thus  to 
afford  to  its  inhabitants  the  opportunity  to  buy  burial  places  without 
being  compelled  to  resort  to  private  cemetery  companies,  where  the 
expense  would  probably  be  greater;  and  it  has  done  this  upon  such 
terms  that  the  burial  of  its  paupers  has  been  practically  without 
expense  in  the  past,  and  it  has  about  forty  acres  remaining,  the  pro- 
ceeds of  which  when  sold  would  go  into  the  city  treasury  but  for  the 
requirement  of  St.  1889,  c.  265. 
■:-     ^^  The  St.  of  1889,  c.  265,  requires  the  city  to  transfer  to  the  newly 

^'^^  \  formed  corporation,  called  "  The  Proprietors  of  Mount  Hope  Ceme- 
iL>>^^\^'^'^^  tery,"  without  compensation,  this  cemetery,  with  the  personal  prop- 
■-'^Ow'T-^T^-^  erty  pertaining  thereto,  and  with  the  right  to  any  unpaid  balances 
I'   vir*^^  remaining  due  for  lots  already  sold,  and  the  annual  income  of  certain 

/V^    ,  funds  held  for  the  perpetual  care  of  lots.      If  such  transfer  is  made, 

,^.>>*^^\jL,      all  that  the  city  would  retain  would  be  the  right  to  bury  such  persons 
V^'^^^^A*^  as  it  is  or  may  be  by  law  obliged  to  bury  in  a  certain  prescribed  por- 
^      tion  of  the  cemetery.     Its  previous  conveyances  of  lots  and  rights  of 
\^  (^  burial  are  expressly  confirmed.     Butjt  is  apparent  from  the  consider- 
ations heretofore  expressed,  that  this  is  not  property  which  is  held 
exclusively  for  purposes  strictly  public.     The  city  of  Boston  is  pos- 
sessed of  much  other  property  which  in  a  certain  sense  and  to  a  cer- 


^ 


%^ 


PROPEIETORS   OF   MOUNT    HOPE   CEMETERY   V.   BOSTON.  127 

tain  extent  is  held  for  the  benefit  of  the  public,  but  in  other  respects 
is  held  more  like  the  property  of  a  private  corporation.  Notably^ 
among  these  may  be  mentioned  its  system  of  water  works,  its  system!  "^ 

of  paj-ks,  its  market^  its  hospital,  and   its  library.     In  establishing  j  ^l^^^^^^-^^-^]^ 
all  of  these,  the  city  has  not  acted  strictly  as  an  agent  of  the  State    ^^ (vJul^ t**^^ 
govermnent,  for  the  accomplishment  of  general  public   or   political      >-«aV*-^;> 
purposes,  but  rather  with  special  reference  to  the  benefit  of  its  own  ^aM*^ 

inhabitants.     If  its  cemetery  is  under  legislative  control,  so  that  a 
transfer  of  it  without  compensation  can  be  required,  it  is  not  easy  to  j 

see  why  the  other  properties  mentioned  are  not  also;  and  all  the  other  jQSsC^  ' 
cities  and  towns  which  own  cemeteries  or  other  property  of  the  kinds  1  (y^^^.' 
mentioned  might  be  under  a  similar  liability.  I  Xj-^"""'''*^^ 

In  view  of  all  these  considerations,  the  conclusion  to  which  we  have 
come  is  that  the  cemetej}'  falls  within  the  class  of  property  which  the  \  ^\vv^  Mi 
city  owns  in  its  private  or  proprietary  character,  as  a  private  corpo-  ^  ^^rjrT^ 
ration  might  own  it,  and  that  its  ownership  is  protected  under  the      iv/vw'Oiife-^ 
Constitutions  of  Massachusetts  and  of  the  United  States  so  that  the] ^_^j...,,^J^>^^ |  u- 
Legislature  has  no  power  to  require  its  transfer  without  compensa-l  '^^^.^.^^ 
tion.     Const,    of  Mass.,  Dec.    of  Eights,  Art.   X.    Const,  of  U.  S.,' i    *i,^U*-vs 
Fourteenth  Amendment.  taJiiiiO'"\?-^ 

In  judging  of  the  validity  of  the  particular  statute  under  consider- 
ation, St.  1889,  c.  265,  there  are  other  reasons  leading  to  the  same  /-.-.» 
result.  [jThe  first  is,  that  the  duties  of  the  city  in  respect  to  provid-lV^-*^'^-^  ^ 
Ing  a  burial  place  for  the  poor  and  for  persons  dying  within  its  limits  Lvuw  <L'<y^ 
are  not  taken  away.     The  city  is  still  bound  to  pi'ovide  one  or  more    f  '  «  )       ^ 
suitable  places  for  the  interment  of  persons  dying  within  its  limits ;'^''^*"'^  vv** 
Pub.  Sts.  c.  82,  §  9;  and   it  is   still  bound  to  bury  its  paupers  and 
indigent  strangers.     Pub.    Sts.    c.  84,    §§  14,   17.     If  this  cemetery 
should  be  conveyed  away,  under  the  provisions  of  St.  1889,  c.  265;. 
the  city  would  be  bound  to  provide  ar  other.     Certainly  the  mere  con- 
tinuance of  the  city's  right  to  bury  in  a  limited  portion  of  the  ceme- 
tery such  persons  as  the  law  requires  it  to  bury  is  not  a  provision 'VaA*'^"'^'^^ 
adequate  to  meet  the  requirement  of  Pub.  Sts.  c.  82,  §  9,  and  by  the 
report  of  facts  the  portion  referred  to  is  not  likely  to  sutHce  even  fo? 
the  burial  of  paupers  for  any  great  length  of  time.     The  city  is  bound 
to  provide  a  suitable  place  for  the  interment  of  persons  dying  within 
its  limits;  not  poor  pcrs&us  only,  but  all  persons;  and  the  burial  of 
the  dead  in  ground  not  sanctioned  by  the  city  authorities  is  strictly 
forbidden.     So  far  as  we  know,  it  has  never  been  held  that  the  Legis- 
lature may  require  a  city  or  town,  without  compensation,  to  transfer 
property  which  it  has  bought  in  order  to  enable  it  to  discharge  its 
statutory  obligations,  while  at  the  same  time  its  duties  and  obliga- 
tions continue  to  rest  upon  it.     On  the  other  hand,  it  is  justly  assumed 
that,  if  the  property  is  to   be  transferred,   the  duties  will  be  trans- 
ferred also.     Rawson  v.  Spencer^  113  Mass.  40.      Commomcealth  v. 
Flaisted,   148  Mass.   375,  386.      Whitney  v.   Stow,   111   Mass.  368. 
Mayor,  &c.   of  Baltimore  v.    State,  15   Md.   376.     But  the  duty  of 


-t^^   -^     «^ 


128 


PEOPEIETORS   OF   MOUNT   HOPE   CEMETEKY   V.   BOSTON. 


w>^ 


.    t^,j  burying  paupers,  and  of  providing  a  place  for  the  interment  of  all 
^^  jpersous  dying  in  Boston,  is  not  imposed  upon  the  petitioner.     The 

i^^z-V^'^^     Iduties  of  the  city,  and  the  duties  of  the  petitioner  under  St.  1889,  c. 

^  1265,  are  not  the  same. 

Moreover,  the  legislative  power  over  municipal  property,  when  it 
exists,  does  not  extend  so  far  as  to  enable  the  Legislature  to  require 
a  transfer  without  compensation  to  a  private  person  or  private  corpo- 
ration. The  control  which  the  Legislature  may  exercise  is  limitec'i ; 
it  must  act  by  public  agencies  and  for  public  uses  exclusively.  If 
the  city  has  purchased  property  for  purposes  which  are  strictly  and 
purely  public,  as  a  mere  instrumentality  of  the  State,  such  property 
is  so  far  subject  to  the  control  of  the  Legislature  that  other  instru- 
mentalities of  the  State  may  be  substituted  for  its  management  and 
care;  but  even  the  State  itself  has  no  power  to  require  the  city  to 
transfer  the  title  from  public  to  private  ownership.  Upon  the  divi- 
sion of  counties,  towns,  school  districts,  public  property  with  the 
public  duty  connected  with  it  is  often  transferred  from  one  public 
corporation  to  another  public  corporation.  But  it  was  never  heard 
of  that  the  Legislature  could  require  the  city  without  compensation  to 
transfer  its  city  hall  to  a  railroad  corporation,  to  be  used  for  a  rail- 
way station,  merely  because  the  latter  corporation  has  a  charter  from 
the  Legislature,  and  owes  certain  duties  to  the  public. 

It  is  contended  in  behalf  of  the  petitioner  that  it  is  a  public  corpo- 
ration, Avholly  under  the  control  of  the  Legislature.  But  it  is  an  errof 
Ml  to  suppose  that  a  corporation  becomes  a  public  one  merely  b}'  receiv. 
;, 5*  ling  a  charter  from  the  Legislature,  by  owing  certain  duties  to  the 
public,  and  by  being  subject  to  rules  and  regulations  established  in 
the  exercise  of  the  police  power.  There  is  nothing  in  the  case  cited 
—  Woodlawn  Cemetery  v.  Everett,  118  Mass.  354  —  to  show  that  the 
Woodlawn  Cemetery  was  regarded  as  a  public  corporation.  It  clearly 
was  not  so.  It  was  said  to  be  subject  to  the  police  power,  like  other 
cemetery  corporations.  Commonioealth  v.  Fahey,  5  Cush.  408.  But 
liability  to  the  exercise  of  the  police  power  rest«  on  different  cou- 
BiHerations,  and  that  power  does  not  extend  so  far  as  to  include  a 
right  to  require  the  transfer  of  property  to  another  person  without 

I  compensation.  The  distinction  b^veen  public  and  priyate  corpora; 
tions  is  well  marked  and  cle"ar.  (public  corporations  are  govern- 
mental and  political,  like  counties,  cities,  towns,  school  districts,  — 
j^L^'^mere  departments  of  the  government,  established  by  the  Legislature, 
'  *  v^^  and  modified,  and  destroyed,  without  their  own  consent.  Private^ 
corporations  are  formed  by  the  voluntary  agreement  of  their  mem- 
bers, and  cannot  be  established  without  the  consent  of  the  corpora- 
tors. Public  corporations,  as  has  been  seen,  may  to  some  extent  in 
relation  to  the  ownership  of  property  partake  of  the  character  of  pri- 
vate corporations;  and,  on  the  other  hand,  many  private  corporations 
are  charged  with  some  duties  and  obligations  to  the  public,  as  in  the 
case  of  railroad,  telegraph,  canal,  bridge,  gas,  and  water  companies. 


•^' 


-*a>^ 


^ 


ca* 


PKOPRIETORS   OF   MOUNT   HOPE    CP:METERY   V.   BOSTON.         129 


TLumhard  v.  Stearns^  4  Cush.  GO.  Worcester  v.  Western  Bailroad^ 
4  Met.  564.  Covimomvealth  v.  Smith,  10  Allen,  448,  455.  But  the 
general  line  of  distinction  between  the  two  classes  of  corporations  is 
clear.  Llnehan  v.  Cambridge,  109  Mass.  212.  Rmcson  v.  Spencer^ 
113  Mass.  40,  45.  Morawetz  on  Corp.  §§  3,  24,  1114.  2  Kent  Com. 
275.  1  Dillon,  Mun.  Corp.  (4th  ed.)  §§  19,  22,  44,  54,  56.  Angell 
&  Ames  on  Corp.  §§  14,  30,  et  seq.  University  of  Maryland  v.  JVil- 
liams,  9  Gill  &  J.  365,  397.  Ten  Eyck  v.  Delaware  &  Baritan 
Canal  Co.  3  Harr.  (N.  J.)  200.  Hanson  v.  Vernon,  27  Iowa 
In  re  DeansvUle  Cemetery  Association,  66  N.  Y.  569. 

An  examination  of  the  provisions  of  St.   1889,  c.  265,  leaves  no    f>  ■,  Tj  v^.,,^"*^ 
doubt  that  the  petitioner  falls  within  the  class  of  private  corpora- 
tions.    Its  c"orporate  members  are  such  of  the  proprietors  of  burial 


Raritan   ♦v4j.,^.^,,.JL>.4.' 


^A 


.1^ 


C\aAn. 


|)^  09^ 


lots  in  the  existing  cemetery  as  shall  accept  the  act  and  notify  the 
clerk  of  the  corporation  of  such  acceptance.     Membership  is  wholly 
voluntary,  and  in  point  of  fact  only  about  one  person  out  of  eight 
who  were  entitled  to  do  so  became  members.     The  corporation  is  to  '  ly^^jOL.  C- 
be  sulijecf  to  all  the  provisions  of  the  Pub.  Sts.  c.  82,  so  far  as  they  -Sl^II <r^^ 
can  be  applied  thereto,  and  except  so  far  as   inconsistent  with  St.  ' 

1889,  c.  265.     Chapter  82  of  the  Public   Statutes  relates  mostly  to 
private  cemetery  companies,  which  may  be  organized  by  any  ten  or 
more  persons.     Jenkins  v.  Andover,  103  Mass.  94,   104.     Such  pri- 
vate cemetery  corporation  may  lay  out  its  real  estate  into  lots,  and 
upon  such  terms,  conditions,  and   regulations   as   it  shall  prescribe 
may  graut  and  convey  the  exclusive  right  of  burial,  etc.     There  is 
nothing  in  St.  1889,  c.  265,  limiting  this  right,  unless  in  §  5,  provid- 
ing that  the  city  shall  continue  to  have  the  right  of  burial,  in  a  cer- 
tain prescribed  portion  of  the  cemetery,  of  persons  for  whose  burial 
it  is  or  may  be  bound  by  law  to  provide,  viz.  paupers  and  indigent 
strangers.     Subject  to  this,  the  petitioner  may  sell  all  the  remaining 
lots,  as  fast  as  it  can,  to  all  applicants.     It  is  true,  under  Pub.  Sts. 
c.  82,  §  2,  it  cannot  make  dividends  from  the  proceeds  of  sales ;  but 
the  Proprietors  of  the  Cemetery  at  Mount  Auburn,  and  many  other 
private  cemetery  corporations,  are  under  the* like  restriction.     If  the 
city  retains  the  ownership,  it  may  devote  the  proceeds  of  sales  of 
lots,  after  providing  for  th-..  suitable  maintenance  of  the  cemetery, 
towards  the  purchase  of  a  new  burial  place  for  its  inhabitants  when 
occasion  may  require.     If  the  petitioner  owns  it,  the  city  will  lose 
that  advantage.     No  duty  to  the   public  is  imposed  upon  the  peti- 
tioner by  the  terms  of  the  statute,  unless  it  is  contained  in  the  words     ^j^ 
in  §  4  of  St.  1889,  c.  265,  "  to  be  held  by  said  corporation,  so  far  asli  iv,vvj 
consistent  herewith,  for  the  same  uses  and  purposes,  and  charged  with!,  lA^^^-.^' 
the  same  duties,  trusts,  aud  liabilities  for  and  subject  to  which  the  ! 
same  are  now  held  by  said  city  ";  and  the  further  words,  "  and  the  said  | 
corporation  shall  have  in  respect  of  said  cemetery  all  rights,  powers, 
and  privileges,  and  be  subject  to  all  duties,  obligations,  and  liabili- 
ties, now  had  or  sustained  by  said  cit}'  iu  respect  thereof."     AVbat 


'-kA  CL 


130 


ATKIN   V.   KANSAS. 


these  duties  towards  the  inhabitants  of  Boston  are,  it  ma}"  be  difficult 
to  8a3\  Certainly  there  appears  to  be  nothing  binding  the  corpora- 
tion to  give  any  preference  to  inhabitants  of  Boston  in  the  sale  of 
burial  rights,  or  to  prevent  a  substantial  increase  in  the  prices  of 
uch  burial  rights,  at  the  will  of  the  corporation.  In  short,  there  i3_ 
'lOthing  in  the  act  to  secure  to  the  inhabitants  of  Boston  those  privi- 
eges  in  respect  to  burial  rights  which  they  might  properly  expect,^ 
even  if  they  could  not  legally  demand  the  same,  from  the  city  itself. 
•There  is  therefore  no  ground  on  which  the  petitioner  can  be  said  in" 
any  just  sense  to  be  a  public  corporation,  and  its  duties  to  the  inhab- 
itants of  Boston  are  at  best  but  vague  and  shadowy. 

The  city  further  urges  that  the  obligation  of  the  contracts  into 
which  it  has  entered  with  purchasers  of  burial  rights,  for  the  per- 
petual care  of  their  lots,  would  be  impaired  by  the  provisions  of  St. 
1889,  c.  265.  Since,  for  the  reasons  already  given,  we  are  of  opinion 
that  the  statute  was  beyond  the  power  of  the  Legislature,  it  is  not 
necessary  to  consider  this  ground  of  objection  to  its  validity. 

Petition  dismissed,  ^ 


%^- 


ATKIN   V.   KANSAS. 


1903.     191  U.  S.  207. 


Prosecution  under  the  eight-hour  law  of  Kansas,  being  §§  3827, 
3828  and  3829  of  the  General  Statutes  of  1901 ;  by  which  it  was  pro- 
vided that  eight  hours  should  constitute  a  day's  work  for  all  laborers 
employed  by  or  on  behalf  of  the  State,  or  any  county,  city,  township 
or  other  municipality  of  the  state,  and  that  the  current  rate  of  wages 
should  be  paid ;  and  that  contractors  in  the  execution  of  contracts 
"vyith  the  State,  city,  etc.,  should  be  subject  to  the  provisions  of  the  act. 
A  penalty  was  provided  for  violation  of  the  act.  The  defendant,  a 
contractor  with  Kansas  City  for  paving  a  street,  is  prosecuted  for  per- 
mitting and  requiring  a  person  employed  by  him  to  labor  ten  hours. 
It  is  agreed  that  the  work  he  was  employed  to  do  was  not  hazardous 
or  dangerous  to  health.^ 

Harlan,  J.  The  case  has  been  stated  quite  fully,  in  order  that 
there  may  be  no  dispute  as  to  what  is  involved  and  what  not  involved 
in  its  determination. 

No  question  arises  here  as  to  the  power  of  a  State,  consistently  with 
the  Federal  Constitution,  to  make  it  a  criminal  offense  for  an  employer 
in  purely  private  work  in  which  the  public  has  no  concern,  to  permit 
or  to  require  his  employes  to  perform  daily  labor  in  excess  of  a  pre- 

1  See  People  v.  Detroit,  28  Mich.  228. 

2  This  sliort  statement  is  substituted  for  that  of  the  Reporter.  Arguments  omitted. 
—  Ed. 


ATKIN   V.   KANSAS.  131 

scribed  number  of  hours.  One  phase  of  that  general  question  was 
considered  in  Holden  v.  Hardy,  169  U.  8.  366,  in  which  it  was  held 
that  the  Constitution  of  the  United  States  did  not  forbid  a  State  from 
enacting  a  statute  providing  —  as  did  the  statute  of  Utah  there  in- 
volved—  that  in  all  underground  mines  or  workings  and  in  smelters 
and  other  institutions  for  the  reduction  or  refining  of  ores  or  metals, 
the  period  of  the  employment  of  workmen  should  be  eight  hours  per 
day,  except  in  cases  of  emergency  when  life  or  property  is  in  imminent 
danger.  In  respect  of  that  statute,  this  court  said  :  "  The  enactment 
does  not  profess  to  limit  the  hours  of  all  workmen,  but  merely  those 
who  are  employed  in  underground  mines,  or  in  the  smelting,  reduction 
or  refining  of  ores  or  metals.  These  employments,  when  too  long  pur- 
sued, the  legislature  has  judged  to  be  detrimental  to  the  health  of  the 
employes,  and  so  long  as  there  are  reasonable  grounds  for  believing 
that  this  is  so,  its  decision  upon  this  subject  cannot  be  reviewed  by 
the  Federal  Courts.  While  the  general  experience  of  mankind  may 
justify  us  in  believing  that  men  may  engage  in  ordinary  employments 
more  than  eight  hours  per  day  without  injury  to  their  health,  it  does 
not  follow  that  labor  for  the  same  length  of  time  is  innocuous  when 
carried  on  beneath  the  surface  of  the  earth,  where  the  operative  is  de- 
prived of  fz'esh  air  and  sunlight,  and  is  frequently  subjected  to  foul 
atmosphere  and  a  very  high  temperature, 'or  to  the  influence  of  noxious 
gases,  generated  by  the  processes  of  refining  or  smelting." 

As  already  stated,  no  such  question]  is  presented  by  the  present 
record  ;  for,  the  work  to  which  the  complaint  refers  is  that  performed 
on  behalf  of  a  municipal  corporation,  not  private  work  for  private  par- 
ties. Whether  a  similar  statute,  applied  to  laborers  or  employes  in 
purely  private  work,  would  be  constitutional,  is  a  question  of  very 
large  import,  which  we  have  no  occasion  now  to  determine  or  even  to 
consider. 

Assuming  that  the_statute  has  application  only  to  labor  or  work  per- 
Xormed  by  or  on  behalf  of  the  State,  or  by  or  on  behalf  of  a  municipal 
corporation,  the  defendant  contends  that  it  is  in  conflict  with  the  Four- 
teenth Amendment.  He  insists  that  the  Amendment  guarantees  to 
him  the  right  to  pursue  any  lawful  calling,  and  to  enter  into  all  con- 
tracts that  are  proper,  necessary  or  essential  to  the  prosecution  of  such 
calling ;  and  that  the  statute  of  Kansas  unreasonably  interferes  with 
the  exercise  of  that  right,  thereby  denying  to  him  the  equal  pro- 
tection of  the  laws.  Allgeyer  v.  Louisiana,  165  U.  S.  578;  Williams  x. 
Fears,  179  U.  S.  270.  In  this  connection,  reference  is  made  by  coun- 
sel to  the  judgment  of  the  Supreme  Court  of  Kansas  in  Ashby's  case, 
60  Kansas,  101,  106,  in  which  that  court  said:  "  When  the  eight-hour 
law  was  passed  the  Legislature  had  under  consideration  the  general 
subject  of  the  length  of  a  day's  labor,  for  those  eugaged  on  public 
works  at  manual  labor,  without  special  reference  to  the  purpose  or 
occasion  of  their  employment.  The  leading  idea  clearly  was  to  limit 
the  hours  of  toil  of  laborers,  workmen,  mechanics,  and  other  persons 


132  ATKIN    V.   KANSAS. 

in  like  employments,  to  eight  hours,  without  reduction  of  compensation 
for  the  day's  services." 

"  If  a  statute,"  counsel  obsei'ves,  "  such  as  the  one  under  consider- 
ation is  justifiable,  should  it  not  apply  to  all  persons  and  to  all  voca- 
tions whatsoever?  Why  should  such  a  law  be  limited  to  contractors 
with  the  State  and  its  municipalities  ?  .  .  .  AVhy  should  the  law  allow 
a  contractor  to  agree  with  a  laborer  to  shovel  dirt  for  ten  hours  a  day 
in  performance  of  a  private  contract,  and  make  exactly  the  same  act 
under  similar  conditions  a  misdemeanor  when  done  in  the  performance 
of  a  contract  for  the  construction  of  a  public  improvement?  Why  is 
the  liberty  with  reference  to  contracting  restricted  in  the  one  case  and 
not  in  the  other?  " 

These  questions  —  indeed,  the  entire  argument  of  defendant's  coun- 
sel—  seem  to  attach-  too  little  consequence  to  the  relation  existing 
between  a  State  and  its  municipal  corporations.  Such  corporations 
are  the  creatures,  mere  political  subdivisions,  of  the  State  for  the  pur- 
pose of  exercising  a  part  of  its  powers.  They  may  exert  only  such 
powers  as  are  expressly  granted  to  them,  or  such  as  may  be  neces- 
sarily implied  from  those  granted.  What  they  lawfully  do  of  a  public 
character  is  done  under  the  sanction  of  the  State.  They  are,  in  every 
essential  sense,  only  auxiliaries  of  the  State  for  the  purposes  of  local 
government.  They  may  be  created,  or,  having  been  created,  their 
powers  may  be  restricted  or  enlarged,  or  altogether  withdrawn  at  the 
will  of  the  Legislature ;  the  authority  of  the  Legislature,  when  restrict- 
ing or  withdrawing  such  powers,  being  subject  only  to  the  fundamental 
condition  that  the  collective  and  individual  rights  of  the  people  of  the 
municipality  shall  not  thereby  be  destroyed.  Rogers  v.  Burlington^ 
3  Wall.  654,  603 ;  United  States  v.  Railroad  Co.,  17  Wall.  322, 
328-329;  Mount  Pleasant  v.  Becliioith,  100  U.  S.  514,  525;  State 
BanTi  of  Ohio  v.  Knoop.  16  How.  369,  380  ;  Hill  v.  MemjMs,  134  U.  S. 
198,  203 ;  Barnett\.  Denison,  145 U.  S.  135, 139  ;  Williams  v.  Eggleston, 
170  U.  S.  304,  310.  In  the  case  last  cited  we  said  that  "  a  municipal 
corporation  is,  so  far  as  its  purely  municipal  relations  are  concerned, 
simply  an  agency  of  the  State  for  conducting  the  affairs  of  govern- 
ment, and  as  such  it  is  subject  to  the  control  of  the  Legislature."  It 
may  be  observed  here  that  the  decisions  by  the  Supreme  Court  of 
Kansas  are  in  substantial  accord  with  these  principles.  That  court, 
in  the  present  case,  approved  what  was  said  in  City  of  Clinton  v.  Cedar 
Rapids  &  3fissouri  River  R.  R.  Co.^  24  Iowa,  455,  475,  in  which  the 
Supreme  Court  of  Iowa  said:  "Municipal  corporations  owe  their 
origin  to,  and  derive  their  powers  and  rights  wholly  from,  the  Legisla- 
ture. It  breathes  into  them  the  breath  of  life,  without  which  they 
cannot  exist.  As  it  creates,  so  it  may  destroy.  If  it  may  destroy,  it 
may  abridge  and  control.  Unless  there  is  some  constitutional  limita- 
tion on  the  right,  the  Legislature  might,  by  a  single  act,  if  we  can  sup- 
pose it  capable  of  so  great  a  folly  and  so  great  a  wrong,  sweep  from 
existence  all  of  the  municipal  corporations  of  the  State,  and  the  cor- 


ATKIN    V.   KANSAS.  133 

porations  could  not  prevent  it.  "We  know  of  no  limitation  on  this  right 
so  far  as  the  corporations  themselves  are  concerned.  They  are,  so  to 
phrase  it,  the  mere  tenants  at  will  of  the  Legislature."  See  slso  In  re 
Dalton,  61  Kansas,  257;  State  ex  rel.  v.  Lake  Koen  Co.,  63  Kansas, 
394;  State  ex  rcl.  v.  Com'rs  of  Shawnee  Co.,  28  Kansas,  431,  433; 
Mayor,  &c.  v.  Groshon,  30  Maryland,  436,  444. 

The  improvement  of  the  Boulevard  in  question  was  a  work  of  which 
the~State,  if  it  had  deemed  it  proper  to  do  so,  could  have  taken  imme- 
diate charge  by  its  own  agents ;  for  it  is  one  of  the  functions  of  gov- 
ernment to  provide  public  highways  for  the  convenience  and  comfort 
of  the  people,^  Instead  of  undertaking  that  work  directly,  the  State 
invested~one  of  its  governmental  agencies  with  power  to  care  for  it. 
Whether  done  by  the  State  directly  or  by  one  of  its  instrumentalities, 
the  work  was  of  a  public,  not  private,  character. 

If,  then,  the  work  upon  which  the  defendant  employed  Reese  was 
of  a  public  character,  it  necessarily  follows  that  the  statute  in  question, 
in  its  application  to  those  undertaking  work  for  or  on  behalf  of  a 
municipal  corporation  of  the  State,  does  not  infringe  the  personal  lib- 
erty of  any  one.  It  may  be  that  the  State,  in  enacting  the  statute, 
intended  to  give  its  sanction  to  the  view  held  by  many,  that,  all  things 
considered,  the  general  welfare  of  employes,  mechanics  and  workmen, 
upon  whom  rest  a  portion  of  the  burdens  of  government,  will  be  sub- 
served if  labor  performed  for  eight  continuous  hours  was  taken  to  be 
a  full  day's  work ;  that  the  restriction  of  a  day's  work  to  that  uuinber 
of  hours  would  promote  morality,  improve  the  physical  and  intellectual 
condition  of  laborers  and  workmen  and  enable  them  the  better  to  dis- 
charge the  duties  appertaining  to  citizenship.  We  have  no  occasion 
here  to  consider  these  questions,  or  to  determine  upon  which  side  is 
the  sounder  reason  ;  for,  whatever  may  have  been  the  motives  control- 
ling the  enactment  of  the  statute  in  question,  we  can  imagine  no  possi- 
ble ground  to  dispute  the  power  of  the  State  to  declare  that  no  one 
undertaking  work/o?*  it  or  for  one  of  its  municipal  agencies,  should  per- 
mit or  require  an  employe  on  such  work  to  labor  in  excess  of  eight 
hours  each  day,  and  to  inflict  punishment  upon  those  who  are  embraced 
by  such  regulations  and  yet  disregard  them.  It  cannot  be  deemed  a 
part  of  the  liberty  of  any  contractor  that  he  be  allowed  to  do  public 
work  in  any  mode  he  may  choose  to  adopt,  without  regard  to  the  wishes 
of  the  State.  On  the  contrary,  it  belongs  to  the  State,  as  the  guardian 
and  trustee  for  its  people,  and  having  control  of  its  affairs,  to  pre- 
scribe the  conditions  upon  which  it  will  permit  public  work  to  be  done 
on  its  behalf,  or  on  behalf  of  its  municipalities.  No  court  has  author- 
ity to  review  its  action  in  that  respect.  Regulations  on  this  subject 
suggest  only  considerations  of  public  policy.  And  with  such  consider- 
ations the  courts  have  no  concern. 

If  it  be  contended  to  be  the  right  of  every  one  to  dispose  of  his 
labor  upon  such  terms  as  he  deems  best  —  as  undoubtedl}'  it  is  —  and 
that  to  make  it  a  criminal  offense  for  a  contractor  for  public  work  to 


134  ATKIN    V.    KANSAS. 

permit  or  require  his  employe  to  perform  labor  upon  that  work  in  ex- 
cess of  eight  hours  each  day,  is  in  derogation  of  the  liberty  both  of 
employes  and  emploj-er,  it  is  sufficient  to  answer  that  no  employe  is 
entitled,  of  absolute  right  and  as  a  part  of  his  liberty,  to  perform  labor 
for  the  State;  and  no  contractor  for  public  work  can  excuse  a  viola- 
tion of  his  agreement  with  the  State  by  doing  that  which  the  statute 
under  which  he  proceeds  distinctly  and  lawfully  forbids  him  to  do. 

So,  also,  if  it  be  said  that  a  statute  like  the  one  before  us  is  mis- 
chievous in  its  tendencies,  the  answer  is  that  the  responsibility  there- 
for rests  upon  legislators,  not  upon  the  courts.  No  evils  arising  from 
such  legislation  could  be  more  far-reaching  than  those  that  might  come 
to  our  system  of  government  if  the  judiciary,  abandoning  the  sphere 
assigned  to  it  by  the  fundamental  law,  should  enter  the  domain  of 
legislation,  and  upon  grounds  merely  of  justice  or  reason  or  wisdom 
annul  statutes  that  had  received  the  sanction  of  the  people's  repre- 
sentatives. We  are  reminded  by  counsel  that  it  is  the  solemn  duty  of 
the  courts  in  cases  before  them  to  guard  the  constitutional  rights  of  ^ 
the  citizen  against  merely  arbitrary  power.  That  is  unquestionably 
true.  But  it  is  equally  true  —  indeed,  the  public  interests  imperatively 
demand  —  that  legislative  enactments  should  be  recognized  and  en- 
forced by  the  courts  as  embodying  the  will  of  the  people,  unless  they 
are  plainly  and  palpabl}^,  beyond  all  question,  in  violation  of  the  funda- 
mental law  of  the  Constitution.  It  cannot  be  affirmed  of  the  statute 
of  Kansas  that  it  is  plainly  inconsistent  with  that  instrument;  indeed 
its  constitutionality  is  beyond  all  question. 

Equally  without  any  foundation  upon  which  to  rest  is  the  proposition 
that  the  Kansas  statute  denied  to  the  defendant  or  to  his  employe  the 
equal  protection  of  the  laws.  The  rule  of  conduct  prescribed  by  it 
applies  alike  to  all  who  contract  to  do  work  on  behalf  either  of  the 
State  or  of  its  municipal  subdivisions,  and  alike  to  all  employed  to 
perform  labor  on  such  work. 

Some  stress  is  laid  on  the  fact,  stipulated  by  the  parties  for  the  pur- 
poses of  this  case,  that  the  work  performed  by  defendant's  employe  is 
not  dangerous  to  life,  limb  or  health,  and  that  daily  labor  on  it  for 
ten  hours  would  not  be  injurious  to  him  in  any  way.  In  the  view  we 
take  of  this  case,  such  considerations  are  not  controlling.  "We  rest  our 
decision  upon  the  broad  ground  that  the  work  being  of  a  public  char- 
acter, absolutely  under  the  control  of  the  State  and  its  municipal  agents 
acting  by  its  authority,  it  is  for  the  State  to  prescribe  tlie  conditions 
under  which  it  will  permit  work  of  that  kind  to  be  done.  Its  action 
touching  such  a  matter  is  final  so  long  as  it  docs  not,  by  its  regulations, 
infringe  the  personal  riglits  of  others;  and  that  has  not  been  done. 

The  judgment  of  the  Supreme  Court  of  Kansas  is  Affinned. 


^^iiU-^ 


m  alt'     RYAN   V.   THE   CITY   OF  NEW  YOEK.  .  135 


,   ("^         RYAN  V.    THE   CITY   OF  NEW  YORK. 
^'^  1904.     177  N.  Y.  271. 

Parker,  C.  J.     There  are  two  questions  presented  by  this  review,    t; 
The  first  is,  Has  the  legislature  power  to  provide  that  its  employees   i* 
and  those  of  the  several  municipalities  shall  receive  "not  less   than 
the  prevailing  rate"  of  wages  in  the  locality?     In  other  words,  has  the 
legislature  —  which  possesses  all  the  power  of  the  sovereign  not  ex-    /-o  as- ^'-^ 
pressly  withheld  by  the  Constitution  —  power  to  provide  that  work 
done  for  it  or  its  several  subdivisions  shall  be  paid  for  at  such  a  rate 
as  individuals  and  corporations  in  the  same  locality  pay  ? 

That  question  was  before  this  court  some  years  ago  in  so  far  as  it 
affects  the  right  of  the  legislature  to  fix  the  rate  of  wages  of  laborers 
upon  the  works  of  the  state  {Clark  v.  State  of  New  York,  142  N.  Y". 
101).  In  1889  the  legislature  passed  an  act  (L.  1889,  ch.  380)  provid- 
ing that  the  rate  of  wages  upon  the  public  works  of  the  static  should 
be  $2  a  day.  That  was  moi-e  than  the  then  prevailing  rate,  and  there 
were  those  who  questioned  the  power  of  the  state  to  interfere  with  its 
agents  in  fixing  the  wages  of  men  working  under  them.  They  thought 
the  superintendent  of  public  works  had  the  sole  power  of  fixing  wages 
of  employees  in  that  department,  and,  therefore,  could  defy  the  direc- 
tion of  the  legislature  as  to  the  amount  of  compensation  to  be  paid, 
although  he  could  disburse  such  moneys  only  as  were  appropriated  by 
the  legislature.  And  they  entreated  the  attorney-general  to  commence 
an  action  to  have  the  court  declare  the  impotency  of  the  legislature  to 
interfere  on  the  important  subject  of  compensation  to  laborers.  But 
when  the  case  reached  this  court  in  1894  the  attorney-general  was  un- 
able to  point  to  the  provision  of  the  Constitution  which  divested  the 
representatives  of  the  People  for  all  matters  of  legislation  of  this 
powei",  and  vested  it  in  the  several  inferior  officials  having  charge  of 
certain  administrative  duties  conferred  upon  them  in  the  majority  of 
instances  by  acts  of  the  same  legislature.  The  court  —  unaffected,  as 
was  its  duty,  by  the  argument  that  the  statute  was  unwise  and  mindful 
that  its  duty  was  discharged  fully  and  could  only  be  discharged  by  de- 
claring whether  the  legislature  had  the  power  to  enact  the  statute  com- 
plained of  —  unanimously  held  that  the  power  belonged  to  it.  Judge 
O'Brien,  writing  for  the  unanimous  court,  says  (142  N.  Y.  101,  105)  : 
"  There  is  no  express  or  implied  restriction  to  be  found  in  the  Consti- 
tution upon  the  power  of  the  legislature  to  fix  and  declare  the  rate  of 
compensation  to  be  paid  for  labor  or  services  performed  upon  the 
public  works  of  the  state." 

The  principle  of  that  decision  controls  this  one.  There  the  legisla- 
ture undertakes  to  fix  arbitrarily  the  sum  to  be  paid  to  every  employee 
of  the  state.  Here  the  legislature  undertakes  to  provide  for  tlie  pay- 
ment of  not  less  than  the  prevailing  rate  of  wages,  not  only  to  tne 


136  RYAN    V.    THE    CITY    OF    NEW   YORK. 

direct  employees  of  the  state,  but  also  to  its  indirect  employees  work- 
ing in  its  several  subdivisions  —  the  cities,  counties,  towns  and  vil- 
lages. In  the  administration  of  the  affairs  of  those  subdivisions,  as 
well  as  in  those  of  the  state  at  large,  the  legislature  is  unrestrained 
unless  by  express  provisions  of  the  Constitutions.  As  expressed  in 
Hodgers'  case,  166  N.  Y.  1,  29:  "The  authority  of  the  state  is 
supreme  in  every  part  of  it  and  in  all  of  the  public  undertakings  the 
state  is  the  proprietor.  For  convenience  of  local  administration  the 
state  has  been  divided  into  municipalities,  in  each  of  which  there  may 
be  found  local  officers  exercising  a  certain  measure  of  authority,  but  in 
that  which  they  do  they  are  but  the  agents  of  the  state,  without  power 
to  do  a  single  act  beyond  the  boundary  set  by  the  state  acting  through 
its  legislature."  Thus  all  of  these  agencies  and  employees  in  the  sev- 
eral municipalities  are  doing  the  work  of  the  state,  which  is  the 
sovereign  and  master. 

Nevertheless,  we  find  that  the  argument  is  again  made,  as  in  1894  in 
Clark's  case,  that  the  legislature  is  without  power  to  interfere  with  the 
agencies  it  has  created  for  the  government  of  the  municipalities.  And 
this  is  said  in  the  face  of  the  decision  in  Clark's  case,  and  notwith- 
standing the  fact  that  the  legislature  has  the  power  at  any  time  to 
absolutely  change  the  form  of  government  of  a  municipalit3%  to  blot 
out  of  existence  any  municipal  charter,  or  to  consolidate  several 
municipalities  under  a  single  charter,  as  it  did  in  the  creation  of 
Greater  New  York.  And  this  argument  is  made  in  spite  of  the  many 
well-known  illustrations  of  the  power  of  the  legislature  to  control  the 
affairs  of  municipalities.  The  scope  of  that  power  is  illustrated  by  the 
construction  of  the  new  aqueduct  by  a  board  created  by  the  legislature, 
the  expense  being  charged  upon  the  city  of  New  York,  although  not  a 
single  officer  of  the  city  had  a  voice  in  controlling  the  expenditure  of 
the  millions  that  its  construction  involved  ;  and  by  the  act  compelling 
the  elevation  of  the  Harlem  railroad  tracks  in  the  city  of  New  York, 
and  the  imposition  of  one-half  of  the  expense,  amounting  to  several 
millions,  upon  the  city  of  New  York,  the  work  all  being  done  through 
an  agency  created  by  the  state. 

Not  only  does  the  legislature  fix  the  salaries  of  the  principal  muni- 
cipal officers  throughout  the  state,  but  in  the  city  of  New  York,  where 
this  case  arises,  it  fixes  the  rate  of  compensation  for  many  laborers. 
The  street  cleaning  department  will  serve  as  an  illustration.  The 
charter  provides  for  the  payment  of  definite  sums  in  some  cases,  and 
for  a  maximum  sum  in  others,  for  a  force  numbering  over  5,000  em- 
ployees in  that  department,  and  including  3,100  sweepers  and  1,G00 
drivers,  hostlers  and  stable  foremen.  The  charter  in  this  respect  has 
the  support  of  Clark's  case,  supra.  Now  there  are  a  few  mechanics 
connected  with  the  department  whose  compensation  is  not  fixed  by  the 
charter,  and  who,  therefore,  come  under  the  prevailing  rate  provision 
of  the  Labor  Law.  Their  compensation  could  be  fixed  of  course  at  a 
definite  sum  as  that  of  the  other  employees  is,  but  instead  it  is  pro- 


RYAN   V.   THE   CITY  OF   NEW   YORK.  137 

vided  in  effect  that  they  shall  be  paid  at  a  rate  not  less  than  that  paid 
by  others  for  similar  services  in  that  locality.  Certainly  no  one  can 
argue  that  the  legislature  can  provide  that  the  street  sweeper  shall  be 
paid  —  for  example  —  62  a  day,  but  cannot  provide  that  he  shall  be 
paid  the  prevailing  rate  of  wages  when  that  happens  to  be  $2.  But  if 
one  can  be  found  who  will  attempt  to  make  such  an  argument  surely 
it  can  be  safely  said  that  he  cannot  find  a  constitutional  provision 
upon  which  to  rest  it. 

[The  court  here  considered  the  opiuion  of  the  Supreme  Court  of  the 
United  States  in  Atkin  v.  State  of  Kansas,  191  U.  S.  207.] 


The  case  under  consideration  is  not  controlled  by  Rodr/ers'  case, 
166  N.  Y.  1.  The  decision  in  that  case  is  that  so  much  of  the 
statute"^^s~in  effect  requires  a  contractor  for  municipal  work  to  agree 
that  he  will  pay  his  workmen  not  less  than  the  prevailing  rate  of  wages, 
and  makes  the  contract  void  if  he  fails  to  pay  at  such  rate,  at  least,  is 
unconstitutional.  It  is  said  by  the  court  in  support  of  that  decision 
that  ITie  statute  invades  rights  of  liberty  and  property  in  that  it  denies 
to  the  contractor  the  right  to  agree  with  employees  as  to  the  rate  of 
compensation,  and  imposes  a  penalty  upon  the  right  of  the  contractor 
to  agree  with  employees  upon  terms  of  employment.  It  is  true  that 
in  one  of  the  prevailing  opinions  argument  sufHciently  broad  to  cover 
this  case  is  made,  but  it  is  not  necessary  for  the  decision,  and  is  obiter, 
and,  therefore,  need  not  be  followed.  Our  conclusion  is  that  so  much 
of  the  statute  as  is  involved  in  this  case  is  constitutional. 

T^e  second  cy-iestion  presented  by  the  record  is:  Did  the  plaintiff 
waive  his  right  to  insist  that  his  compensation  should  be  at  the  pre- 
vailing rate  of  wages  for  rammers  in  the  city  of  New  York?  Section  3 
oTTlie  Labor  Law  does  not  attempt  to  fix  in  dollars  and  cents  the 
wages  to  be  paid  to  those  employed  on  state  or  municipal  work,  but 
provides  that  such  wages  "  shall  not  be  less  than  the  prevailing  rate 
for  a  day's  work  in  the  same  trade  or  occupation  in  the  locality." 
The  statute,  therefore,  made  it  the  duty  of  the  person  charged  with 
employing  plaintiff  to  ascertain  the  prevailing  rate  of  wages  for  simi- 
lar services  in  the  city,  and  then  to  fix  the  compensation  at  that 
amount,  or  a  still  greater  one,  and  by  the  section  following  tlie  legis- 
lature undertook  to  assure  such  action  by  the  officials  commanded  to 
fix  wages  at  not  less  than  the  prevailing  rate  by  providing  that  an 
official  violating  the  provisions  of  the  act  would  be  guilt}-  of  malfea- 
sance in  office,   and  be  suspended  or  removed. 

We  must  assume  —  in  view  of  the  fact  that  the  question  arises  from 
a  demurrer  to  the  complaint  —  that  all  of  its  allegations  are  true,  and 
that  the  oflScer  employing  the  plaintiff  did  not  obey  the  statute,  and 
hence  became  subject  to  its  penalties.  But  that  fact  in  nowise  aids 
the  plaintiff  in  Ins  present  contention.  He  had  been  in  the  emplo}-  of 
the   city  for  some  time  prior   to   May  10,    1894  —  when    the  statute 


138  RYAN   V.   THE   CITY   OF   NEW   YORK. 

went  into  operation  —  at  the  rate  of  $3  a  day,  and  that  sum  the  city 
continued  to  pay,  and  he  to  receive  without  protest,  for  a  period  of  six 
years.  The  prevailing  rate  of  wages  for  that  period  was  S3. 50  a  day, 
and  the  employing  officer  should  have  fixed  plaintiff's  wages  at  that 
sum  or  greater.  But  he  did  not  do  it,  and  while  the  plaintiff  could 
have  properly  insisted  that  the  officer  should  heed  the  command  of  the 
statute  in  that  respect,  he  chose  instead  to  continue  in  the  service  of 
the  city  without  objecting  to  the  compensation. 

Now,  "it  is  well  settled  by  authority  that  a  man  may  waive  any 
right  that  he  has,  whether  secured  to  him  by  contract,  conferred  on 
him  by  statute  or  guaranteed  him  by  the  Constitution."  People  ex  rel. 
McLaugldin  v.  Bd.  Police  Comrs.,  174  N.  Y.  450,  456,  and  cases 
cited.  And  the  legal  effect  of  plaintiff's  action  in  accepting  from 
time  to  time  during  a  period  of  six  years,  without  protest,  the  wages 
paid  to  him  by  the  city,  was  to  waive  any  claim  that  he  might  have 
had  at  the  time  to  insist  that  the  employing  officer  should  fix  his  rate 
of  compensation  at  a  greater  sum  than  he  did. 

It  follows  that  plaintiff  is  not  entitled  to  recover. 

The  judgment  should  be  affirmed,  with  costs. 

O'Brien,  J.  This  was  an  action  to  recover  arrears  of  wages  claimed 
by  the  plaintiff  to  be  due  to  him.  The  plaintiff  alleges  in  his  com- 
plaint that  the  defendant  is  indebted  to  him  in  the  sum  of  six  hundred 
dollars  for  arrears  of  pay  as  a  laborer  on  the  streets  at  the  rate  of 
fifty  cents  per  day  for  each  work  day  that  he  was  employed  by  the  de- 
^^^^(jJi^^-ii^Vfendant  during  a  period  of  about  six  years  and  paid  at  the  rate  of 
three  dollars  per  day.  In  substance,  his  claim  is  that,  during  all  this 
time,  he  was  not  paid  enough  and  if  the  city  had  obeyed  that  provision 
of  the  Labor  Law  requiring  it  to  pay  "the  prevailing  rate  of  wages" 
he  would  have  received  three  dollars  and  fifty  cents  per  da}'. 

The  defendant  demurred  to  the  complaint  on  the  ground  that  it  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action.  The  courts 
below  sustained  the  demurrer  and  the  plaintiff  has  appealed  to  this 
court  from  the  judgment.  The  complaint  alleges  that,  prior  to  the 
enactment  of  the  Labor  Law  on  May  10,  1894,  the  plaintiff  had 
been  in  the  employ  of  the  city  as  a  laborer  on  the  streets  and  was 
paid  therefor  at  the  rate  of  three  dollars  per  day,  but  claims  no  arrears 
of  pay  on  account  of  such  services.  It  is  then  alleged  that  the  Labor 
Law  was  enacted  on  May  10,  1894  (Chap.  622,  Laws  of  1894),  and 
that  the  plaintiff  from  that  date  became  entitled  to  receive  wages  at 
the  prevailing  rate,  and  that  such  rate,  upon  the  law  taking  effect,  be- 
came three  dollars  and  fifty  cents  per  day.  It  is  then  stated  that, 
after  the  law  went  into  effect,  the  plaintiff  continued  to  work  in  the 
same  capacity  by  the  day  during  about  six  years,  to  the  first  of  Janu- 
ary, 1900,  working  in  all  twelve  hundred  days  and  was  paid  therefor 
at  the  rate  of  three  dollars  for  every  day,  or  three  thousand  six  hundred 
dollars  in  all,  whereas  if  the  prevailing  rate  of  wages  law  had  been 
observed  he  would  have  received  four  thousand  two  hundred  dollars. 


RYAN    V.   THE    CITY    OF   NEW   YORK.  139 

The  differeuce  between  these  two  amounts  is  the  sum  for  which  judg- 
ment is  demanded. 

It  appears,  therefore,  from  the  face  of  the  complaint  that  the  plain- 
tiflf  worked  for  the  defendant  before  the  law  took  effect  and  for  sis 
j-ears  after,  receiving  the  same  wages  after  the  law  as  before.  The 
course_pf  dealing  between  Jlie  parties  during  such  a  long  period  of 
tmie,  in  the  absence  of  some  allegation  of  fraud,  mistake,  or  of  a 
right  expressly  reserved,  justifies  the  legal  inference  that  there  was„ 
a  contract  between  the  parties,  expressed  or  to  be  implied,  that  the 
plahitiff  was  to  receive  for  his  work  three  dollars  per  day  and  no  more^ 
oFThat  he  has  waived  all  claim  under  the  statute.  When  a  servant 
sues  the  master  for  wages,  alleging  that  he  worked  by  the  day  for 
more  than  six  years,  and  was  paid  for  each  day's  work  at  the  rate  of 
three  dollars  per  day,  and  makes  no  claim  or  allegation  that  he  ever 
asked  any  more,  or  ever  objected  on  the  ground  that  he  had  not  been 
paid  enough,  or  that  he  reserved  the  right  to  demand  more  in  the 
future,  or  that  there  was  fraud  or  mistake  in  the  dealings,  the  legal 
conclusion  from  the  facts  must  be  that  there  was  a  full  settlement 
between  the  parties  or  an  agreement  as  to  the  rate  of  wages,  or  a 
waiver  of  any  other  claim.  McCarthy  v.  Mayor,  etc.,  of  N.  Y.,  96 
N.  Y.  1.  I  understand  that  there  is  no  difference  of  opinion  in  this 
court  on  this  point,  and,  if  not,  then  the  case  is  decided  and  it  is  not 
necessary  to  discuss  the  validity  of  the  Labor  Law.  That  question, 
as  I  think,  is  no  longer  open  in  this  court.  People  ex  rel.  Rodgers  v. 
Coler,  166  N.  Y.  1;  People  ex  rel.  Treat  w.  Coler.,  id.  149;  PeojAe  ex 
rel.  Lentilhon  v.  Coler,  168  N.  Y.  8  ;  People  ex  rel.  North  v.  Feather- 
stonhaur/h,  172  N.  Y.  112;  People  v.  Orange  Co.  R.  C.  Co.,  175  N. 
Y.  84.  It  is,  however,  supposed  to  be  necessary  or  useful  to  reopen 
that  controversy  and  to  make  a  fanciful  distinction  between  the  de- 
cisions already  made  and  the  case  at  bar.  There  can  be  no  sound 
distinction  in  the  application  of  the  statute  to  the  direct  and  immediate 
employees  of  a  city  and  the  case  of  an  independent  contractor  who 
has  not  observed  the  law.  The  contention  that  in  the  former  case  the 
law  may  be  held  good  though  it  may  be  void  as  to  the  latter  is  not 
based  upon  any  sound  reason  and  is  in  conflict  with  the  authorities 
cited.  The  defendant's  charter  provides  that  certain  public  work,  in- 
volving the  expenditure  of  money  beyond  a  certain  designated  amount, 
must  be  done  by  contractors  whose  bid  for  the  work  is  the  lowest  or 
most  favorable  to  the  city,  and  as  to  work  below  this  amount  it  may  be 
done  b}'  the  city  itself  directly  through  its  own  employees.  "We  have  cer- 
tainly held  that,  as  to  the  former  class  of  work,  the  statute  with  re- 
spect to  "the  prevailing  rate  of  wages"  is  void,  although  in  that  case 
the  city  inserted  "  the  prevailing  rate  of  wages  "  clause  in  the  contract. 
It  is  now  earnestly  contended  that  there  is  a  distinction  to  be  observed 
with  respect  to  the  validity  of  the  law  when  applied  to  the  same  class 
of  laborers  working  for  a  contractor  and  those  working  for  the  cit}'. 
That  as  to  the  former  the  law  is  in  conflict  with  the  Constitution,  while 


140  EYAN   V.   THE    CITY   OF   NEW   YOKE. 

as  to  the  latter  it  is  perfectly  valid.  Just  how  the  law  can  bind  the 
city  and  not  bind  the  contractor  is  difficult  to  conceive,  since  the  latter 
is  an  instrument  of  the  former  in  carrying  out  the  purpose  of  its  incor- 
poration. The  contractor  has  no  standing  to  question  a  valid  law 
under  which  the  city  acted  when  entering  into  a  contract  with  him.  I 
will  only  add  that,  to  my  mind,  there  is  something  preposterous  in  the 
proposition  that  this  statute  cannot,  as  we  have  held,  bind  a  contractor 
digging  a  sewer  on  one  side  of  a  street  while  it  can  and  does  bind  the 
city  superintendent  of  streets  repairing  a  pavement  on  the  other  side. 
But  if  the  question  was  a  new  one  there  is,  I  think,  but  little  difficulty 
in  its  proper  solution.  The  question,  in  its  last  analysis,  is  a  very 
simple  one,  and  that  is  whether  a  mandatory  statute  which  requires  a 
city  to  pay  to  its  employees  a  fixed  sum  as  compensation  for  their 
work  or  as  wages  is  a  constitutional  exercise  of  legislative  power. 

There  can  be  no  distinction  in  this  respect  between  a  statute  which 
fixes  the  wages  of  servants  directly  in  dollars  and  cents  at  so  much 
per  day  or  so  much  per  hour  and  a  statute  which  fixes  minimum  wages 
by  some  known  or  ascertainable  rule  or  standard.  The  statute  re- 
quiring the  defendant  in  this  case  to  pay  to  its  workmen  a  sum  de- 
scribed as  "the  prevailing  rate  of  wages  "  is,  under  the  circumstances 
of  the  case,  just  as  objectionable  as  if  it  specified  the  sum  to  be  paid, 
since  in  the  one  case  as  well  as  in  the  other  the  city  is  deprived  of  the 
right  to  make  contracts  with  its  employees,  fixing  the  rate  of  wages, 
and  of  all  discretion  with  respect  to  the  same.  Considering  the  power 
of  the  legislature  over  this  subject,  the  question  is  not  always  what 
has  been  done  but  what  may  be  done,  if  the  power  claimed  be  conceded. 
If,  in  this  case,  the  statute  had  fixed  the  plaintiff's  wages  at  five  dollars 
per  day  there  could  be  no  objection  made  to  the  law  that  cannot  be 
made  now.  If  the  statute  in  that  case  would  be  bad  then  the  law  in 
its  present  form  is  open  to  the  same  objection.  We  learn  from  the 
complaint  in  this  case  the  important  fact  that  just  as  soon  as  the 
statute  went  into  operation  "  the  prevailing  rate  of  wages"  instantly 
rose  over  fifteen  per  cent,  which  is  an  object  lesson  throwing  much 
light  upon  the  nature  of  the  power  assumed  in  the  passage  of  the  law. 
It  simply  means  that  the  legislature  has  the  power  to  raise  or  depress 
wages  at  pleasure  under  the  vain  hope  or  excuse  that  the  changes  will 
be  confined  to  the  boundaries  of  cities. 

There  is  no  attempt  made,  and  obviously  none  can  well  be  made,  to 
bring  the  law  within  the  scope  of  the  police  power.  It  cannot  be  saiH 
that  it  is  a  law  to  promote  the  public  health,  or  public  safety,  or  public 
order,  and  no  element  can  possibly  be  injected  into  it  to  render  it  valid 
as  a  police  regulation.  There  is  but  one  ground,  if  I  understand  the 
argument,  upon  which  this  law  is  defended,  and  that  is,  when  stated  in 
the  broadest  way,  that  cities  have  no  rights  that  the  legislature  may 
not  regulate  and  change  at  pleasure,  since  cities,  it  is  said,  are  created 
and  exist  only  by  the  will  of  the  legislature  and  that  the  power  to 
which  they  owe  their  existence  is  supreme  over  every  detail  of  their 


RYAN   V.   THE    CITY   OF   NEW   YOKE.  141 

internal  affairs ;  that  a  city  is  but  an  agency  of  the  state  that  the  lat- 
ter may  command,  coerce  or  direct  at  ■will.  Arguments  that  contain  a 
considerable  element  of  truth  are  often  difficult  to  ansn^er,  even  though 
when  considered  as  a  whole  they  may  be  unsound  and  quite  misleading, 
as  this  argument  certidnly  is.  It  is  often  said  in  a  very  general  way 
that  cities  and  other  public  municipal  corporations  are  agencies  of  the 
state,  and  that  is  true  iu  so  far  as  they  are  invested  with  powers,  poli- 
tical or  governmental,  but  surely  no  one  will  claim  that  the  relation  of 
principal  and  agent  exists  between  the  state  and  its  several  munici- 
palities. Agency  is  a  relation  that  is  generally  founded  in  contract,  and 
the  agent,  within  the  scope  of  his  powers,  speaks  and  acts  for  his 
his  principal  and  so  binds  him.  The  principal  may  impose  his  will 
upon  the  conduct  of  the  agent  by  commanding  him  what  to  buy  and 
what  to  sell  and  he  ma}'  fix  the  price  at  his  pleasure.  But  it  is  scarcely 
necessary  to  argue  that  no  such  relation  can  possibly  exist  between 
the  defendant  and  the  state.  The  city  of  New  York  is  not  an  agent 
of  the  state  in  the  sense  that  the  legislature  may  dictate  what  price  it 
must  pay  for  property  or  labor  that  it  may  need  in  the  conduct  of  its  local 
alTairs.  If  this  were  so,  then  there  can  be  no  such  thing  as  home  rule 
for  citjes  and  the  idea  apparently  so  popular  and  so  much  commended 
is  a  delusion. 

The  precise  question  that  we  have  to  deal  with  here  is  whether  the 
most  important  city  on  this  continent,  if  not  in  the  world,  has  got  such 
a  measure  of  autonomy'  and  home  rule  as  to  render  it  independent  of 
legislative  interference,  at  least  with  respect  to  the  price  that  it  shall 
pay  for  common  labor  or  other  property  that  it  may  require  in  perform- 
ing its  functions  as  a  local  government.  It  would  be  of  very  little  use 
to  provide,  as  the  Constitution  of  this  state  does,  that  local  officers  in 
cities  must  be  either  elected  by  the  people  or  appointed  by  some  local 
authority,  if  it  still  remained  in  the  power  of  the  legislature  to  pre- 
scribe, by  statute,  to  the  officers  who  are  elected  to  take  charge  of  the 
streets  or  public  works,  the  minimum  wages  which  the  city  must  pay 
for  labor,  or  the  price  it  must  pay  for  property,  thus  depriving  the 
officer  of  all  judgment  and  discretion  in  regard  to  his  duties.  If  a  local 
officer,  as  the  representative  of  the  city,  is  not  left  free  in  this  respect 
he  cannot  be  said  to  be  acting  in  the  exercise  of  his  own  judgment  or 
in  the  interest  of  the  locality  but  simply  obeying  tlie  will  of  the  central 
power.  A  corporation,  whether  public  or  private,  is  a  person  within 
the  meaning  of  the  constitutional  guaranties  for  the  security  of  liberty, 
propert}'  and  tlie  equal  protection  of  the  law.  If,  therefore,  the  legis- 
lature may  not  dictate,  by  statute,  to  a  private  person  or  corporation 
what  he  or  it  shall  pay  for  property,  or  the  rate  of  wages  to  be  paid  to 
employees,  I  fail  to  see  where  it  can  get  the  power  to  dictate  to  the 
city  the  wages  it  must  pay  to  the  men  it  must  employ  in  the  care  of  its 
streets  or  other  public  works.  If  the  legislature  can  deprive  a  city  of 
the  right  to  hire  its  own  laborers  at  such  wages  as  they  can  mutually 
agree  on,  why  can  it  not  deprive  every  corporation  of  the  same  right? 


142  EYAN    V.    THE    CITY   OF    NEW   YOKE. 

Ajgrivate  corporation  is  just  as  much  a  creature  of  the  state  as  a  pub- 
lic corporation,  but  no  one  has  yet  contended  that  a  law  fixing  the  "fate" 
of  wages  for  a  private  corporation  would  be  good.  When  the  state" 
creates  a  corporation,  public  or  private,  and  sends  it  forth  upon  its 
mission,  it  becomes  invested  by  the  Constitution  and  the  law  of  its 
creation  with  certain  rights  and  privileges  that  are  as  inviolable  as 
those  of  private  persons.  Its  property  may  not  be  confiscated  or 
taken  from  it  except  by  its  consent  or  by  due  process  of  law.  It  can- 
not be  denied  the  equal  protection  of  the  law.  The  money  which  a 
city  procures  by  the  exercise  of  the  taxing  power  cannot  be  diverted, 
directly  or  indirectly,  to  any  private  purpose  or  for  the  benefit  of  any 
class  as  such.  And  yet  all  these  constitutional  guaranties  may  be  vio- 
lated if  the  legislature  can  fix  the  wages  of  laborers  or  the  price  to  be 
paid  for  any  property  that  the  municipality  may  need. 

That  some  or  all  these  constitutional  rights  have  been  invaded  by 
the  statute  in  question  is  quite  evident.  That  will  appear  from  the 
facts  of  the  present  case,  and  by  that  I  mean  the  facts  stated  in 
the  complaint  and  those  that  are  fairly  to  be  inferred  therefrom.  The 
city  of  New  York,  in  the  exercise  of  its  chartered  powers,  must  pur- 
chase immense  amounts  of  property,  real  and  personal,  and  must  em- 
ploy a  vast  army  of  laborers,  and  the  money  to  pay  for  the  same  must 
be  procured  by  local  taxation.  The  state,  as  such,  bears  no  part  of 
these  expenses,  and  the  question  is  whether  it  may  prescribe  by  statute 
the  price  which  the  city  must  pay  for  such  property  or  the  wages  for 
such  labor,  or  must  all  these  things  be  left  for  the  city  itself  to  settle 
by  agreement  upon  such  terms  as  may  be  reasonable,  just  as  such 
matters  are  settled  by  private  corporations  or  individuals?  If  the 
legislature  should  pass  a  statute  prescribing  the  minimum  price  that 
the  defendant  should  pay  for  the  carpets  and  furniture  in  the  city  hall 
and  should  even  name  the  merchant  or  dealer  from  whom  alone  they 
could  be  purchased,  every  argument  adduced  to  uphold  the  statute  in 
question  would  apply  with  equal  force  to  such  a  law.  If  the  legisla- 
ture has  the  power  to  fix  the  price  of  common  labor,  what  objection 
can  there  be  to  a  statute  fixing  the  minimum  or  maximum  price  of  such 
commodities?  This  case  is  a  good  illustration  of  the  operation  of  a 
statute  fixing  the  price  of  labor.  We  are  informed  by  the  complaint 
that,  prior  to  the  enactment  of  the  Labor  Law  on  May  10,  1894,  the 
plaintiff  was  employed  by  the  day  to  work  on  the  streets  and  was  paid 
wages  at  the  rate  of  three  dollars  per  day.  There  is  no  claim  made 
that  the  wages  thus  paid  were  not  fair  wages  or  the  going  wages. 
There  is  no  claim  that  the  plaintiff  ever  asked  or  expected  any  more, 
but  it  seems,  or  at  least  the  complaint  so  states,  that,  just  as  soon  as 
the  Labor  Law  went  into  effect  on  May  10,  1894,  "  the  prevailing 
rate  of  wages  "  at  once  rose  to  three  dollars  and  fifty  cents  per  day, 
but  the  plaintiff  was  apparently  oblivious  of  that  fact,  or,  at  all  events, 
paid  no  attention  to  it,  but  continued  to  work  in  the  same  way  and 
draw  pay  at  the  same  rate  for  six  years  without,  so  far  as  appears, 


RYAN    V.   THE   CITY    OF    NEW    YORK.  143 

making  any  objection  to  the  rate  of  wages,  or  demanding  any  increase. 
Xow,  it  is  said  that  the  city  is  in  arrears  and  is  indebted  to  him  in  the 
sum  of  six  hundred  dollars,  being  fifty  cents  more  for  each  day  that 
he  worked  and  was  paid  three  dollars  per  day.  This  claim  has,  of 
course,  no  foundation  except  in  the  statute,  which,  as  he  claims,  gave 
him  the  right  to  the  additional  fifty  cents. 

If  the  plaintiff  can  recover,  so  can  hundreds  and  possibly  thousands 
of  other  people,  and  such  demands  in  the  aggregate  must  amount  to  a 
very  large  sum  of  money  that  the  city  must  raise  b}'  taxation  and  pay 
to  its  employees  after  their  work  has  been  performed.  Who  will  assert 
that  the  money  so  paid  out  of  the  treasury  is  devoted  to  a  legitimate 
city  purpose?  Who  can  deny  that  the  millions  of  dollars  which  the 
cit}'  is  required  to  raise  and  pay  for  such  arrears  is  not  in  the  nature 
of  a  gratuity  to  private  persons?  The  position  of  the  city  is  that  it 
owes  the  plaintiff  nothing  and  if  it  must  pay  at  all  it  will  be  under  the 
coercion  of  the  legislative  enactment.  The  power  of  the  legislature 
over  municipal  corporations  in  all  matters  political  or  governmental, 
within  constitutional  limits,  is  conceded,  but  surely  that  does  not  in- 
clude the  power  to  interfere  in  every  detail  of  its  internal  affairs,  and 
the  right  of  the  city  to  hire  its  own  employees  who  work  upon  the 
streets  on  such  terms  as  can  be  fairly  agreed  upon  is  one  of  the  things 
that  does  not  concern  the  state,  but  is  confided  to  the  local  authorities. 
The  compensation  of  all  city  authorities  and  of  the  clerical  force  in  the 
se^-eral  departments  may  be  fixed  and  regulated  by  law,  since  their 
duties  are  public,  political  or  governmental,  but  the  wages  of  laborers 
or  the  price  of  property  is  something  that  cannot  be  fixed  and  regulated 
by  statute  without  undermining  every  principle  of  local  autonomy.  It 
would  be  a  very  idle  ceremony  to  provide  in  the  Constitution  that  all 
moneys  raised  by  taxation  in  cities  must  be  devoted  to  city  purposes 
if  the  legislature  may  enact  a  law  which  will  enable  the  plaintiff  at  the 
end  of  six  years  and  after  drawing  pay  all  the  time  at  the  rate  of  three 
dollars  per  day,  that  being,  so  far  as  appears,  all  he  asked  or  expected, 
to  reopen  the  account  to  add  over  fifteen  per  cent  more  to  the  amount 
paid  to  him  for  his  labor  and  which  it  is  apparent  he  was  satisfied  with 
at  the  time  as  his  compensation. 

It  is  no  part  of  the  legitimate  powers  or  functions  of  government  to^^p''*^ 
fix  wages  any  more  than  it  is  to  prescribe  the  price  of  bread..  If  a  |  i  '  " 
statute  may  be  enacted  to  put  wages  up,  so  may  one  be  enacted  to  put 
wages  down.  If  wages  for  the  employees  of  a  city  can  be  fixed  by  a 
statute  at  five  dollars  per  day  they  can  be  fixed  at  fifty  cents  per  day, 
all  depending  upon  the  temper  of  a  majority  of  the  legislature.  Such 
legislation  cannot  be  justified  upon  the  ground  that  it  is  aimed  only  at 
a  great  city  existing  under  a  legislative  charter. 

The  argument  in  that  respect  embodies  a  fundamental  error,  in  that 
it  fails  to  observe  the  legal  character  of  a  municipal  corporation  pos- 
sessed as  it  is  of  dual  powers;  the  one  governmental,  legislative  or 
public,  and  the  other  proprietary  or  private.     When  imposing  taxes, 


144  RYAN    V.   THE   CITY   OF   NEW   YORK. 

enacting  ordinances  and  conducting  public  improvements,  the  city  is 
exercising  a  part  of  the  sovereign  power,  but  in  hiring  laborers  and 
purchasing  property  for  the  corporate  use  it  acts  as  a  private  individ- 
ual entitled  to  all  the  privileges  and  immunities  that  the  Constitution 
secures  to  private  persons.  These  latter  powers  are  conferred  and  ex- 
ercised for  the  private  advantage  of  the  particular  corporation  as  a 
distinct  legal  personalty^  and  as  to  such  powers  and  to  property  ac- 
quired thereunder  and  contracts  made  with  reference  thereto,  the  cor- 
poration is  to  be  regarded  quo  ad  hoc  a  private  corporation.  (Dillon 
on  Municipal  Corporations,  §  66.)  It  is  upon  this  principle  that  cities 
are  made  liable  for  acts  or  omissions  under  the  law  of  negligence. 
The  law  of  master  and  servant  is  applicable,  just  as  it  is  applicable 
between  private  parties. 

In  Conrad  V.  Trustees  of  the  Village  of  Ithaca,  16  N.  Y.  158,  it  was 
held  that  where  the  trustees  of  the  village  were  made  by  its  charter 
commissioners  of  highways  they  were  to  be  regarded,  in  respect  to 
that  function,  not  as  independent  public  officers,  but  as  the  agents  of 
the  corporation,  so  as  to  make  the  latter  civilly  responsible  for  their 
acts  of  omission,  according  to  the  law  of  master  and  servant.  In  a 
note  to  the  case  last  cited  is  published  an  opinion  by  Judge  Seldox  in 
Weet  V.  Trustees  of  the  Village  of  BrocJcport,  wherein  he  points  out  the 
principle  that  lies  at  the  basis  of  the  rule  which  makes  a  municipal 
corporation  liable  under  the  maxim  of  respondeat  superior  as  follows  : 
"  That  whenever  an  individual  or  a  corporation,  for  a  consideration 
received  from  the  sovereign  power,  has  become  bound  by  covenant  or 
agreement,  either  express  or  implied,  to  do  certain  things,  such  indi- 
vidual or  corporation  is  liable,  in  case  of  neglect  to  perform  such  cov- 
enant, not  onl}'  to  a  public  prosecution  by  indictment,  but  to  a  private 
action  at  the  suit  of  any  person  injured  by  such  neglect.  In  all  such 
cases  the  contract  made  with  the  sovereign  power  is  deemed  to  enure 
to  the  benefit  of  every  individual  interested  in  its  performance."  This 
liability  of  the  municipality  as  to  the  care  of  the  streets  was  again 
recognized  by  this  court  in  ^/ij-^/of^  v.  Mayor,  etc.,  of  New  York,  96 
N.  Y.  264.  Judge  Earl,  after  citing  Conrad  v.  Trustees  of  Vil.  of 
Ithaca,  16  N.  Y.  158;  Bequa  v.  City  of  Rochester,  45  N.  Y.  129; 
Hutson  V.  Mayor,  etc.,  of  N.  Yl,  9  N.  Y.  163;  Davenport  y.  Ruckman, 
37  N.  Y.  560;  Hume  v.  Mayor,  etc.,  of  N.  Y.,  74  N.  Y.  264,  ob- 
served that  the  rule  has  been  somewhat  criticised,  but  that  "it  has  the 
sanction  of  a  wise  public  policy,  the  support  of  good  reasons,  and  that 
its  operation  is  generally  just  and  beneficent."  This  principle  has 
been  recosrnized  in  manv  other  cases  in  this  ftate  that  need  not  be 
cited.  It  has  also  been  approved  by  the  Supreme  Court  of  the  United 
States  in  Barnes  v.  District  of  Columbia,  91  U.  S.  540,  and  b}'  the 
Circuit  Court  of  the  United  States  in  Barney  Dumping-Boat  Co.  v. 
Mayor,  etc.,  of  City  of  New  York,  40  Fed.  Rep.  50. 

In  Missano  v.  Mayor,  pic,  of  N  Y,  160  N.  Y.  123,  129,  this  court 
held,  after  a  review  of  the  authorities,  as  follows:  "  It  is  clear  upon 


RYAN   V.    THE    CITY    OF   NEW   YOEK.  145 

principle  and  authority  that  the  city  of  New  York,  in  the  ordinary  and 
usual  care  of  its  streets,  both  as  to  repairs  and  cleanliness,  is  acting  in 
the  discharge  of  a  special  power  granted  to  it  by  the  legislature,  in  the 
exercise  of  which  it  is  a  legal  individual,  as  distinguished  from  its 
governmental  functions  when  it  acts  aa  a  sovereign.  Maxmilian  v. 
Mayor,  etc.,  62  X.  Y.  164." 

In  the  present  case  the  legislature  in  enacting  the  Labor  Law  was 
dealing  with  the  city  of  New  York  in  its  proprietary  or  private  capacity, 
wherein  it  is  to  be  regarded  as  a  legal  individual  as  distinguished  from 
its  governmental  functions  when  it  acts  as  a  sovereign. 

Sweeping  aside  all  forms  and  seeking  to  establish  the  real  legal  situ- 
ation, the  city  in  this  respect  is  nothing  more  than  an  aggregation  of 
private  citizens  who  are  taxpayers  and  as  such  are  entitled,  acting  in 
the  combination  created  by  the  charter,  to  the  protection  through  the., 
legal  entity  thereby  created,  of  all  those  individual  rights  and  privileges 
precisely  as  if  each  was  acting  for  himself. 

if  it  be  true,  as  tlie  foregoing  authorities  clearly  establish,  that  a 
municipal  corporation,  acting  as  a  legal  individual,  is  liable  in  damages 
for  the  negligence  of  its  servant,  it  must  logically  follow  that  it  is 
entitled  to  all  the  immunities  and  pri\'ileges  incident  to  that  situation, 
and  this  involves  the  right  of  the  city  under  the  Constitution  to  hire  its 
own  laborers  and  servants,  since  it  would  be  intolerable  if  their  em- 
ployment could  be  regulated  and  controlled  by  the  central  power,  while 
the  city  alone  is  made  liable  for  their  negligence  or  mistakes.  The 
legislature  may  authorize  burdens  to  be  imposed  upon  them  for  public 
works  or  improvements  and  possibly  may  require  the  same  by  manda- 
tory laws  in  the  interest  of  the  general  public,  but  this  does  not  embrace 
the  power  to  dictate  to  the  city  the  wages  it  shall  pay  to  its  employees 
in  the  performance  of  its  work  or  to  deprive  the  local  authorities  who 
act  for  the  tax-payers  of  all  judgment  and  discretion  upon  that  subject. 
A_tax-payer  in  a  city  has  the  right  to  have  such  questions  decided  by 
the  judgment  of  the  local  authorities  who  represent  him  and  not  by  the 
Cjentral  power  at  the  capital  of  the  state. 

It  is  a  curious  fact  that  every  argument  in  support  of  statutes  of  this 
character,  whether  proceeding  from  the  bench  or  the  bar,  contains  the 
broad  admission  that  if  such  laws  were  made  applicable  to  private  cor- 
porations or  individuals  they  would  then  be  clearly  in  conflict  with  the 
Constitution.  These  arguments,  like  that  to  sustain  the  statute  in 
question,  entirely  overlook  or  ignore  the  important  distinction  between 
these  powers  and  functions  of  municipal  corporations  that  are  public 
or  political  and  those  that  are  private.  This  distinction  has  nowhere 
T3een  better  stated  and  illustrated  than  in  the  opinion  of  Judge  Coolet 
in  the  case  of  People  ex  rel.  Park  Comrs.  v.  Coramon  Council  of  Detroit, 
28  Mich.  228.  After  stating  what  he  considers  as  settled  law,  the 
proposition  that  cities,  considered  as  communities  endowed  with  pecu- 
liar functions  for  the  benefit  of  their  own  citizens,  have  always  been 
recognized  as  possessing  powers  and  capacities  and  as  being  entitled 


146  EYAN   V.    THE   CITY    OF   NEW   YORK. 

to  exemptions  distinct  from  those  which  they  possess  or  can  claim  as 
conveniences  in  state  government ;  that  they  possess  powers  and  ca- 
pacities which  are  ^v^j'tz-a^e  in  contradistinction  to  those  in  which  the 
state  is  concerned  and  which  are  called  public,  thus  putting  such  cor- 
porations, as  regards  all  such  powers,  capacities  and  interests,  sub- 
stantiallj'  on  the  footing  of  private  corporations  or  individuals,  the 
learned  judge  then  proceeds  to  amplify  this  distinction  as  follows : 
"  Whoever  insists  upon  the  right  of  the  state  to  interfere  and  control 
by  compulsory  legislation  the  action  of  the  local  constituency  in 
matters  exclusively  of  local  concern,  should  be  prepared  to  defend  a 
like  interference  in  the  action  of  private  corporations  and  of  natural 
persons.  It  is  as  easy  to  justify  on  principle,  a  law  which  permits  the 
rest  of  the  community  to  dictate  to  an  individual  what  he  shall  eat,  and 
what  he  shall  drink,  and  what  he  shall  wear,  as  to  show  any  constitu- 
tional basis  for  one  under  which  the  people  of  other  parts  of  the  state, 
through  their  representatives,  dictate  to  the  city  of  Detroit  what  foun- 
tains shall  be  erected  at  its  expense  for  the  use  of  its  citizens,  or  at 
what  cost  it  shall  purchase,  and  how  it  shall  improve  and  embellish  a 
park  or  boulevard  for  the  recreation  and  enjoyment  of  its  citizens. 
The  one  law  would  rest  upon  the  same  fallacy  as  the  other,  and  the 
reasons  for  opposing  and  contesting  it  would  be  the  same  in  each  case. 
And  while  it  may  be  entirely  possible  that  in  any  particular  instance 
the  interference  would  be  beneficial  to  the  person  or  the  community 
whose  rights  are  invaded,  it  is  not  to  be  overlooked  that  an  interfer- 
ence to  compel  a  person  to  submit  to  something  for  his  own  good  may 
be  made  use  of  as  a  precedent  to  compel  him  at  some  future  time  to 
submit  to  extortion  and  plunder.  The  law  very  properly  draws  a  line 
between  that  which  is  admissible  and  that  which  is  not,  and  it  does  not 
allow  outside  dictation  in  matters  purely  of  local  concern,  for  one  very 
good  reason,  among  others  equally  good,  that  the  motive  for  outside 
interference  will  very  likely  be  something  besides  a  desire  to  do  good 
to  a  community  in  which  the  parties  interfering  have  no  personal 
interest,  unless  of  a  merely  sentimental  nature,  and  whose  burdens 
Jtej  are  not  to  share,  or  enjoyments  participate  in.  All  such  matters 
are  lett  to  those  whose  interests  will  prompt  them  to  act  with  prudence, 
and  who  because  of  their  interest,  and  because  tliej'  relate  to  matters 
that  must  come  under  their  own  view  and  observation,  they  are  pre- 
sumptively best  qualified  to  decide  upon." 

It  was  held  in  the  Orange  County  Road  Constr.  Co.  case,  supra, 
that  a  statute  making  it  a  crime  for  a  person  contracting  with  a  muni- 
cipal corporation  to  require  more  than  eight  hours'  work  for  a  day's 
labor  was  unconstitutional  and  void.  It  was  held  in  the  Rogers  case, 
sujyra,  that  a  similar  statute  forfeiting  a  contractor's  right  to  compen- 
sation for  his  work  if  he  omitted  in  doing  the  work  to  pay  what  is 
called  the  prevailing  rate  of  wages,  was  also  in  conflict  with  the  Con- 
stitution. In  the  Rogers  case  the  city  resisted  the  claim  of  the  con- 
tractor for  compensation.     It  had  no  other  defense  and  this  court  held 


RYAN    V.    THE    CITY   OF   NEW   YORK.  147 

that  it  constituted  no  answer  to  the  contractor's  claim  to  set  up  a  vio- 
lation of  a  statute  which  was  invalid  and  beyond  the  power  of  the 
legislature  to  enact.  What  distinction,  if  any,  there  is  or  can  be 
between  these  cases  and  the  one  at  bar  I  confess  I  am  unable  to  state. 
I  leave  that  to  my  brethren  who  now  differ  with  me,  only  adding  that 
it  does  not  seem  to  me  wise  to  introduce  fanciful  distinctions  in  the 
construction  of  statutes  of  this  character  whenever  the  membership  of 
the  court  happens  to  be  changed.  It  must  be  remembered  that  in  the 
Rogers  case  it  was  the  city  that  set  up  and  claimed  the  protection  of 
the  statute,  and  we  held  that  the  law  had  no  force  or  eflf'ect  to  defeat 
the  claim  of  the  contractor,  but  in  the  present  case  it  is  to  be  held  that 
it  is  a  good  basis  for  a  common  laborer  upon  which  to  assert  a  valid 
claim  against  tlie  cit}'  treasury  or,  in  other  words,  a  statute  held  to  be 
void  as  against  the  claim  of  the  contractor  is  the  very  cornerstone  and 
foundation  for  a  claim  against  the  city  by  one  of  its  servants  or 
employees- 

I  am  in  favor  of  affirming  this  judgment  on  the  point  first  above 
stated,  but  I  am  not  in  favor  of  going  out  of  our  way  to  change  the 
construction  already  given  to  the  Labor  Law  on  the  basis  of  a  distinc- 
tion so  frail  and  fanciful  as  that  contended  for  by  the  learned  counsel 
for  the  plaintiff. 

Haight,  Cullen  and  Werner,  J.  J.,  concur  with  Parker  Ch.  J. ; 
Bartlett  and  Vann,  J.  J.,  concur  with  O'Brien,  J. 

Judgment  affirmed. 


148  CENTRAL    BRIDGE   CORPORATION   V.   LOWELL. 


CHAPTEE   III. 
INTERNAL  CONSTITUTION. 


Section  1.    Organization. 


CENTRAL  BRIDGE   CORPORATION   v.    LOWELL. 

1860.     15   Gmt/,   106.  ''■'' 

Petition  to  the  county  eommis-sioners  of  Middlesex  for  the  assess- 
ment by  a  sheriff's  jury  of  damages  occasioned  by  the  taking  and  lay- 
ing out  of  the  petitioners'  bridge  as  a  public  street  of  the  city  of 
Lowell.  On  March  23,  1843,  an  added  act  was  passed  for  the  regula- 
tion of  tolls  of  the  bridge,  and  to  limit  the  continuation  of  the  charter 
of  the  corporation.  It  contained  a  provision  by  which  in  a  certain 
contingency  the  bridge  should  revert  to  the  Commonwealth  for  the 
public  use  ;  and  a  further  provision  that  it  might  be  sooner  made  free 
on  reimbursement,  as  provided  in  the  original  statute.  This  act  was 
to  take  effect  when  accepted  by  the  bridge  corporation  and  by  the  city 
of  Lowell,  at  legal  meetings  of  the  respective  corporations.  The  act 
was  accepted  by  vote  of  the  city  council  of  Lowell.-^ 

B.  F.  Butler  and  A.  P.  Bonney.,  for  the  respondents  argued  that  as 
the  charter  of  the  city  declared  that  the  inhabitants  of  the  town  of 
Lowell  should  "  continue  to  be  one  body  politic,  under  the  style  and 
denomination  of  the  City  of  Lowell,"  and  provided  for  general  meet- 
ings of  the  inhabitants;  St.  1838,  c.  128,  §§  1,  23;  a  legal  meeting  of 
the  corporation,  required  by  St.  1843,  c.  50,  §  8,  for  the  acceptance 
of  this  act,  must  be  a  meeting  of  the  inhabitants,  and  that  the  mayor, 
aldermen  and  common  council  were  only  officers  of  the  corporation, 
and  not  the  corporation  itself.  The  petitioners  replied  that  b^'  §  8  of 
the  city  charter,  all  the  powers  of  the  town  or  of  its  inhabitants  as  a 
municipal  corporation  were  vested  in  the  city  council. 

Shaw,  C.  J.  .  .  The  acceptance  by  the  mayor  and  aldermen 
and  common  council  of  the  city  of  Lowell,  in  due  form,  was  a  legal 
acceptance  by  the  corporation,  because  it  was  done  by  their  duly 
constituted  representatives.     All  the  powers  of  the  city,  as  a  muni- 

1  This  statement  of  the  facts  material  to  the  only  question  in  the  case  wliich  is 
here  presented  is  taken  from  the  opinion.  Only  so  much  of  the  opinion  as  deals 
with  the  question,  what  constitiites.g^legal_  meeting  _of  the  cjjj-,  is  here  given.  —  Ed. 


IN   EE   PFAHLEE.  149 

cipal  corporation,  were  vested  in  the  city  council,  except  those,  if 
any,  specially  and  expressly  reserved  by  the  charter  to  be  exercised  by 
the  people.     No  such  reservation  applies  to  this  case. 


.h:^-^- 


j^ 


A    ,  In  re  PFAHLER. 

1906.     150  Cal.  71.  ^*^ 

Angellotti,  J.^  The  petitioner  is  held  in  the  custody  of  the  chief  fl/jt«>5.»-« 
of  police  of  the  city  of  Los  Angeles,  under  a  warrant  issued  upon  a  .  Aj^K^,^.^ 
complaint  charging  him  with  a  violation  of  the  provisions  of  a  certain  ^ 

purported  ordinance  of  said  city,  which  ordinance  prohibits,  except 
within  certain  defined  limits,  the  killing  or  slaughteriug  of  animals  the 
flesh  of  which  is  to  be  sold  or  offered  for  sale  or  eaten.  There  is  no 
claim  that  the  complaint  does  not  state  facts  sufficient  to  show  a  public  ;,  ,<i„vv;^,^L-i 
offense  under  the  provisions  of  said  ordinance,  nor  is  there  on  the  part 
of  the  petitioner  any  claim  that  the  ordinance,  if  legally  enacted,  was 
not  a  reasonable  aud  valid  exercise  of  the  police  power  vested  in  such 
city.  Petitioner's  claim  is  that  the  purported  ordinance  has  never  been 
legally  enacted. 

The  ordinance  was  not  adopted  in  the  ordinary  way,  by  vote  of  the 
city  council  and  approval  of  the  mayor,  but  by  the  electors  of  the  city 
at  a  general  election,  at  which  it  was  submitted  for  their  approval  or 
rejection,  such  submission  having  been  compelled  by  a  petition  sub- 
mitted to  the  council  signed  by  electors  equal  in  number  to  at  least  five 
per  cent  of  the  vote  cast  for  all  candidates  for  maj'or  at  the  last  pre- 
ceding election.  The  procedure  was  in  strict  accord  with  what  is 
known  as  the  "initiajjie"  provision  of  the  charter  of  Los  Angeles, 
which,  together  with  what  is  known  as  the  "  referendum,"  was  made  a 
part  of  such  charter  by  amendments  ratified  bj^  the  people  of  such  city 
at  an  election  held  December  1,  1902,  and  approved  by  the  legislature 
of  the  state  on  January  30,  1903.  See  Stats.  1903,  pp.  555,  572. 
Th¥~real  question  presented  by  this  proceeding  is,  then,  as  to  the  va- 
lidity of  this  provision  of  the  charter. 

The  city  of  Los  Angeles  is  a  municipal  corporation  operating  under 
a  freeholders 'charter,  framed  and  adopted  under  the  provisions  of 
section  8  of  article  XI  of  the  constitution,  and  approved  by  the  legis- 
lature January  31,  1889.  Stats.  1889,  p.  455.  By  that  charter  the 
legislative  power  of  the  city  was  vested  in  a  council  provided  for  by 
such  charter,  subject  to  the  power  of  veto  and  approval  by  the  mayor. 
The  initiative  amendment  of  1902  and  1903,  so  far  as  material  to  the 
question  here  presented,  provides  substantially  as  follows:  Any  pro- 
posed ordinance  may  be  submitted  to  the  council  by  a  petition  signed 

1  Only  80  much  of  the  opinion  as  involves  the  constitutionality  of  the  act  under 
the  Constitution  of  the  United  States  is  given.  —  Ed. 


150  IN   EE    PFAHLER. 

by  registered  electors  of  the  city.  If  such  petition  is  signed  by  elec- 
tors equal  in  number  to  fifteen  per  cent  of  the  entire  vote  cast  for 
all  candidates  for  mayor  at  the  last  preceding  general  election  at 
which  a  mayor  was  elected,  and  contains  a  request  that  said  ordinance 
be  submitted  forthwith  to  a  vote  of  the  people  at  a  special  election,  the 
council  must  either,  —  1.  Pass  such  ordinance  without  alteration  (sub- 
ject to  a  referendary  vote  as  elsewhere  provided),  and  if,  when  passed, 
it  is  vetoed  by  the  mayor,  and  on  reconsideration  fails  of  passage  by 
the  council,  submit  it  to  a  vote  of  the  people  at  a  special  election  ;  or 
2.  Call  a  special  election,  at  which  said  ordinance,  without  alteration, 
shall  be  submitted  to  a  vote  of  the  people.  If  the  petition  is  signed  by 
electors  equal  in  number  to  at  least  five  per  cent,  but  less  than  fifteen 
per  cent  of  such  vote,  the  ordinance  shall  be  submitted  to  a  vote  of  the 
people  at  the  next  general  municipal  election  that  shall  occur  at  any 
time  after  thirty  days  from  the  date  when  the  sufficiency  of  the  petition 
is  officially  determined.  "If  a  majority  of  the  qualified  electors  voting 
on  said  proposed  ordinance  shall  vote  in  favor  thereof,  such  ordinance 
shall  thereupon  become  a  valid  and  binding  ordinance  of  the  city ;  and 
any  ordinance  proposed  by  petition  or  which  shall  be  adopted  by  a 
vote  of  the  people  cannot  be  repealed  or  amended,  except  by  a  vote  of 
the  people.  .  .  .  The  council  may  submit  a  proposition  for  the  repeal  of 
any  such  ordinance,  or  for  amendments  thereto,  to  be  voted  upon  at 
any  succeeding  general  election  ;  and  should  such  proposition  receive  a 
majority  of  the  votes  cast  thereon  at  such  election,  such  ordinance 
sliall  be  repealed  or  amended,  accordingly.  " 

The  accompanying  referendum  amendment  provides  :  ' '  No  ordinance 
passed  by  the  city  council  (except  when  otherwise-  required  by  the 
general  laws  of  the  state  or  the  provisions  of  the  charter,  respecting 
street  improvements,  and  except  an  ordinance  for  the  immediate  preser- 
vation of  the  public  peace,  health  or  safety,  which  contains  a  statement 
of  its  urgency,  and  is  passed  by  two-thirds  vote  of  the  council,  but  no 
grant  of  any  franchise  shall  be  construed  to  be  an  urgency  measure, 
but  all  franchises  shall  be  subject  to  the  referendary  vote  herein  provi- 
ded for),  shall  go  into  effect  before  thirty  days  from  the  time  of  its  final 
passage  and  its  approval  by  the  mayor.  "  It  is  futher  provided  therein 
that  a  protest  against  such  ordinance  filed  during  said  thirty  days, 
signed  by  electors  equal  in  number  to  at  least  seven  per  cent  of  such 
vote,  shall  have  the  effect  of  suspending  the  ordinance  from  going  into 
operation  and  require  the  council  to  reconsider  the  same,  and,  if  that 
body  does  not  entirely  repeal  it,  submit  it  to  the  electors  at  a  general 
or  special  election,  the  ordinance  to  go  into  effect  or  not  as  the  majority 
of  the  electors  voting  thereon  shall  decide. 

While  no  question  as  to  the  validity  of  the  referendum  amendment  is 
directly  involved  here,  we  have  briefly  set  forth  its  provisions,  as  the 
two  amendments  are  simply  part  of  the  general  plan  or  scheme  looking 
to  a  more  direct  control  of  local  legislation  by  the  people  of  the  city  ; 
and,  so  far  as  the  principal  objections  here  made  are  concerned,  must 


IN   RE   PEARLER.  151 

stand  or  fall  together.  Those  objections  go  to  the  question  of  the 
validity,  under  the  provisions  of  the  Constitution  of  th'clJuTted  States 
and  our  own  constitution  and  laws,  of  any  provision  in  a  municipar 
charter  which  autiionzes  the  electors^f  the  municipality  to  participate 
directly  in  the  enacting  of  local  laws.  These  two  amendments,  the' 
initiative  and  the  referendum,  have  the  same  effect  in  this  respect. 
In  each,  it  is  the  vote  of  the  electors  at  the  ballot-box  that  finally 
determines  whether  or  not  a  proposed  measure  shall  be  a  law^  at  all, 
and  it  can  make  no  difference  in  principle  whether  the  proposition 
originates  with  electors  or  with  the  council.  In  each,  tlie  electors  by 
their  vote  at  the  ballot-box  directly  exercise  legislative  power.  By 
these  amendments  the  electors  are,  except  in  certain  specified  cases, 
given  an  effectual  veto  power  as  to  all  ordinances  approved  by  the 
council,  and  are  clothed  with  authority  paramount  to  that  of  the  coun- 
cil to  directly  enact  such  local  legislation  as  they  may  deem  expedient, 
where  the  council  declines  to  enact  the  same. 

The  charter  provision  relative  to  the  initiative,  which  is  substantially 
similar  to  recently  enacted  provisions  in  the  charters  of  other  municipal- 
ities of  the  state,  is  vigorously  attacked  by  counsel  for  petitioner  and 
other  attornej's  appearing  as  amid  curiae^  who  claim  to  see  in  this 
curbing  of  the  power  of  the  ordinary  legislative  body  of  the  city,  this 
vesting  in  the  electors  of  a  municipality  the  power  to  enact  measures  j, 

which  the  legislative  body  refuses  to  approve,  a  violation  of  our  own     -    K^^K 
constitution,  and  a  forbidden  defiarture  from  the  republican  focaj  of 
government  guaranteed  by  the  cojastitution  of  the  United  States.  .^ii— M 

The  latter  objection  may  appropriately  be  first  considered.  Its  sole  O-v 
foundation  is  section  4  of  article  IV  of  the  constitution  of  the  United 
States,  which  is  as  follows  :  "The  United  States  shall  guarantee  to  every 
state  in  this  Union  a  republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion  ;  and  on  application  of  the  legislature, 
or  of  the  executive  (when  the  legislature  cannot  be  convened),  against 
domestic  violence."  The  contention  here  is,  necessarily,  that  any  at- 
tempt by  a  state  to  provide  for  a  direct  exercise  of  legislative  power 
by  the  people,  instead  of  by  representatives  of  the  people  elected  or 
appointed  for  that  purpose,  is,  even  in  purely  local  affairs,  inconsistent 
with  the  republican  form  of  government  guaranteed  by  this  provision, 
and  ineffectual  for  any  purpose,  the  theory  being  that  such  provision 
requires  a  purely  representative  form  of  government  not  only  in  the 
state  itself,  but  also  in  all  its  subdivisions,  leaving  no  vestige  of  power 
of  direct  legislation  in  the  people  themselves. 

If  we  assume  that  this  claim  presents  a  judicial  question  rather  than\  *-^  ','- 
a  political  one  to  be  determined  by  the  Congress  of  the  United  States  \ 
(see,  however,  Luther  v.  Borden,  7  How.  1;  Taylor  v.  Beckham,  178  '; 
U.  S.  548  [20  Sup.  Ct.  1009]  ),  we  are  brought  to  a  consideration  of 
the  question  as  to  what  was  meant  by  this  guarantee  of  a  republican 
form  of  government.     For  all  the  purposes  of  this  proceeding,   it  is 
sufficient  to  Iiold,  as  we  do,  that  it  does  not  prohibit  the  direct  exercise 


(MIS 


152  IN   EE   PFAHLEE. 


\ 


Ji.A^.  of  legislative  power  by  the  people  of  a  subdivision  of  a  state  in  strictly 


^^ 


\>'i 


g  local  affairs.     In  saying  this,  we  do  not  wish  to  be  understood  as  inti- 


v*.^ 


mating  that  the  people  or  a  state  may  not  reserve  the  supervisory  con- 
trol as  to  general  state  legislation  afforded  by  the  initiative  and 
referendum,  without  violating  this  provision  of  the  federal  constitution. 
That  they  may  do  so  has  been  decided  by  the  supreme  court  of  Oregon 
in  the  case  of  Kadderly  v.  Portland,  44  Or.  118,  [74  Pac.  710,  75Pac. 
222],  which  appears  to  be  the  only  ease  in  which  that  question  has 
been  directly  presented.  See,  also,  HojjJcins  v.  City  of  Dulv.th,  81 
Minn.  189,  [83  N.  W.  536].  However  this  may  be,  it  is  clear  that 
the  direct  participation  of  the  electors  of  subdivisions  of  a  state  in 
s  t  .  legislation  as  to  local  affairs  was  never  intended  to  be  prohibited  by 

^  ■  the  framers  of  the  federal  constitution,  or  the  states  adopting  the  same, 

and  that  such  power  has  been  exercised  by  them,  where  not  inconsis- 
tent with  provisions  of  their  state  constitution,   in  innumerable  in- 
stances,, from  the  institution  of  our  government  to  the  present  day, 
V       without  interference  of  any  kind  on  the  part  of  the  federal  government. 
f\  'Vrr'^         As  is  universally  recognized  by  courts  and  writers  on  constitutional 
^.    {ir>M'>v   Y^^  1^  must  be  assumed  that  there  was  nothing  in  any  of  the  forms  of 
^a^^J^^   government  prevailing  in  the  various  states  at  the  time  of  the  adoption. 
sj-^r^^-^     of  the  constitution  that  was  violative  of  the  provisions  under  discus- 
sion.    Discussing  this  question,  and  speaking  of  the  forms  of  govern- 
ment then  existing  in  the  various  states,  the   supreme  court   of  the 
United  States  said,  in  Minor  v.  Happersett,  21  Wall.   162,  175,  176  ; 
••'  These  governments  the  constitution  did  not  change.     They  were  ac- 
.  cepted  precisely  as  they  were,  and  it  is,  therefore,  to  be  presumed 
that  they  were  such  as  it  was  the  duty  of  the  states  to  provide.     Thus 
we  have  unmistakable  evidence  of  what  was  republican  in  form  within 
the  meaning  of  that  term  as  employed  in  the  constitution."     It  is  un- 
necessary to  here  do  more  than  to  refer  to  the  widely  known  and  well- 
recognized  form  of  local  government  that  prevailed  in  several  of  the 
states  at  the  time  of  the  adoption  of  the  constitution,  known  as  the 
New  England  town  government,  under  which  all  the  inhabitants   in 
\      ~     0  town  meeting  directly  exercised  such  legislative  power  as  was  essential 
'  "'/^  '        to  the  conduct  of  local  affairs.     No  difference  material  to  the  objection 
^•^  under  discussion  is  to  be  found  in  the  fact  that  they  did  this  in  public 

,f>ty*^^  meeting,  rather  than  by  secret  ballot  at  the  polls,  as  under  the  provi- 

^  '^  sion  before  us.     The  objection  here  made  is  that,  under  the  republican 

form   of  government   guaranteed   by  the  federal    constitution,    such 
^v>o'    , .    power  cannot  be  directly  exercised  by  the  people,  and,  so  far  as  that 
^\J^^        objection  is  concerned,  if  the  people  may  legislate  directly  in  town 
'^'^  meeting,  they  may  do  so  by  their  votes  at  the  polls.     The  constitu- 

tional provision  was  framed  and  adopted  with  full  knowledge  of  this 
system  of  local  government  that  then  obtained  in  four  of  the  states, 
and  that  system  was  continued  under  the  constitution,  without  any 
question  as  to  its  validity.  It  is  still  to  be  found  not  only  in  several 
of  the  New  England  states,  but  also  in  other  states  (see   1  Bryce's 


IN   RE    PFAIILER. 


153 


American  Commonwealth,  pp.  594,  601,  605;  1  Dillon  on  Municipal 
Corporations,  sec.  258),  and  we  are  not  aware  that  any  suggestion  has 
ever  been  made  that  this  form  of  local  government  is  prohibited  by  the 
federal  constitution.  Other  instances  practically  without  number  of 
the  direct  exercises  of  legislative  power  by  the  people  in  local  affairs 
authorized  by  the  state  might  be  noted.  As  suggested  in  the  briefs, 
the  forms  of  local  government  in  this  country  have  been  most  varied, 
running  all  the  way  from  the  pure  democracy  of  the  town  meeting 
form  of  government  up  to  such  absolute  control  by  the  legislature  of 
the  state  as  deprived  communities  of  any  voice  in  local  affairs.  It  is 
apparent  from  this  condition  of  affairs,  existing  continuously  from  the 
moment  of  the  adoption  of  the  constitution,  that,  if  there  is  anything 
therein  inconsistent  with  a  republican  form  of  government,  within  the 
meaning  of  these  words  as  used  in  the  federal  constitution,  the  con- 
stitutional guarantee  was  intended  to  applj'^  only  to  the  form  of  govern- 
ment for  the  state  at  large,  and  not  at  all  to  the  local  government 
prescribed  by  the  state  for  its  municipalities  and  other  subdivisions. 

AVhatever  may  be  said  as  to  the  former,  the  latter  is  undoubtedly 
true.     It  is  clearly  a  question  of  local  policy  with  each  state  whait  shall^rj!t-6J«l 


be  its  Yarious  political  subdivision^  rny  pnrpofip 
ment,  and  what  shall  be  the  extent  and  character  of  the  powers  of 
those  subdivisions  anrl  the  manner  of  their  exercise. ..  The  power  of  a 
state  in  such  matters  is  absolute,  ."^ee  Clairborne  v.  Brooks,  111 
U.  8.  400,  [4  SuprCt.  489];  Forsyth  v.  Bammond,  166  U.  S.  506, 
[17  Sup.  Ct.  665].  "Where  the  authority  of  the  electors  of  a  munici- 
pality or  other  subdivision  of  a  state  to  directly  legislate  in  a  matter 
of  purely  local  concern  is  denied  by  a  state  court,  it  is  denied  solely 
upon  the  ground  that  the  state  constitution  or  statutes  forbid  the  ex- 
ercise of  such  power,  as  in  Elliott  v.  Detroit,  121  Mich.  611,  [84 
N.  W.  820],  and  many  cases  cited  by  petitioner.  See  Cooley  on  Con- 
stitutional Limitations,  7th  ed.  pp.  165,  166;  Dillon  on  Municipal  Cor- 
porations, sec.  44  and  note.  The  extent  to  which  the  people  of  a 
municipality  shall  be  allowed  to  directly  participate  in  the  govern- 
mental function  of  legislating  in  local  or  municipal  affairs  is  there- 
fore purely  a  question  of  state  policy,  in  the  determination  of  which 
the  state  is  not  restricted  by  anj^  provision  of  the  federal  consti- 
tution. In  thus  speaking  of  the  state,  we  mean  not  the  legislature 
of  the  state,  or  the  executive,  or  the  judiciary,  but  the  entire  body  of 
the  people,  who  together  form  the  body  politic,  known  as  the  "  state  " 
Panlmlloio  v.  Doan's  Admr.,  3  Dall.  93,  [Fed.  Cas.  No.  10,925]  ; 
Broicn  v.  State,  5  Colo.  499. 
McFaelaxd,  J.,  dissenting.i 


1  "  The  provision  for  the  so-called   initiative  and   referendum  in  regard  to  the  ' 
adoption  of  ordinances  is  not  unconstitutional.     Legislation  in  towns,  by  by-laws,  in 
regard  to  subjects  strictly  of  local  concern,  has  been  a  part  of  the  law  of  Massachu- ,        ., 
setts  from  the  earliest  times.     Opinion  of  the  Justices,  100  Mass.  686,  590.     Whether  I    -iJi^y^     '^ 
such  legislation  shall  be  inaugurated  by  the  people,  or  entirely  by  a  representative  '       "'—"         "^ 


COMMONWEALTH   ex  rel.   McCURDY  v.   LEECH,  y^^ 

1863.     44  Pa.  332. 

LowRiE,  C.  J.     This  is  a  writ  for  a  qxio  warranto  to  try  the  title  of 

the  defendant  to  the  office  of  common    councilman  of   Philadelphia, 

\)      which  office  the  relator  claims  to  belong  to  him. 

^irV  (j^         The  allegations  are  that  the  election  returns  show  that  tlie  relator 

y*^    ^^^    was  elected,  and  that  he  duly  received  a  certificate  of  his  election  from 


>• 


•U,!^ 


all  the  return  judges;  that  by  a  fraudulent  combination  with  some  of 

the  return  judges,  the  defendant  obtained  from  a  majority  of  them  a 

JK^^         like  certificate  in  his  favour,  and  afterwards  falsely  and  fraudulently 

^  if^.\  declared  that  he  would  not  use  it,  and  after  thus  inducing  the  relator 

^s^*^^  not  to  commence  proceedings  to  prevent  the  use  of  it,  he  fraudulently 

combined  with  others  to  use  it,  and  thereby  obtained  his  seat  in  the 

council,  and  still  holds  it. 

Do  these  allegations  raise  a  case  that  this  court  is  authorized  by  law 
to  decide  ?  We  are  very  sure  that  they  do  not.  It  is  very  plainly  a 
case  where  there  are  two  claimants  for  the  very  same  office,  which  only 
oiie  of  them  can  have  ;  and  therefore  it  is  a  case  of  a  contested  elec- 
tion, and  must  be  tried  in  the  mode  that  is  specially  provided  for  such 
cases,  and_  not  by  the  ordinary  forms  of  judicial  process..  This  has 
been  so  often  decided  of  late  years  that  we  supposed  it  was  generally 
understood.  It  is  a  well-settled  precept  of  the  common  law  and  of 
common  sense  that  where  a  statutory  remedy  is  given  with  a  statutory 
right,  the  common  law  remedies  are  withheld,  and  this  principle  is  em- 
bodied in  the  Act  of  21  March,  1806,  which  is  very  familiar  in 
practice. 

The  mode  of  trying  contested  elections  of  councilmen  of  Philadek 
i  phia  is  written  in  the  Charter  Act  of  1854,  and  is  the  same  as  is  pro- 
vided for  contested  elections  of  members  of  the  Senate  and  House  of 
Representatives.     We  need  not   describe  what  that  is,  for  it  is  well 
known  that  it  is  by  a  committee  of  the  body  in  which  the  seat  is 
I  claimed,  and  that  the  courts  have  nothing  to  do  with  it. 

Does  the  allegation  of  fraud  in  the  election,  or  in  the  conduct  of  the 
return  judges,  or  of  any  oFtfiem,  or  in  the  conduct  of  any  of  the  can- 
didates in  procuring  votes  and  obtaining  the  certificate  of  election, 
give  rise  to  any  other  remedy?  No,  certainly  not;  for  all  these  are 
matters  that  can  be  fully  tried  in  the  special  mode  provided  by  the 
statute,  and  all  of  these  are  intended  to  be  tried  in  that  way.     It  would 

body  or  board  of  oflBcers,  is  a  matter  of  regulation  in  regard  to  which  our  Constitu- 
tion is  silent.  It  is  therefore  for  the  General  Court  to  determine  by  enactment. 
The  provisions  of  the  Constitution  which  forbid  the  adoption  of  the  so-called  initia- 
tive and  referendum  in  general  legislation  do  not  extend  to  the  making  of  by-laws 
and  ordinances  by  towns  or  cities  under  the  authority  of  the  Legislature,  in  regard 
to  subjects  of  local  concern.  Opinion  of  the  Justices,  160  Mass.  686,  689."  Knowl- 
XON,  C.  J.,  in  "Graham' V.' Roberts,  200  Mass.  152,  158. 


McCURDY   V.   LEECH. 


155 


■<^ 


■>-AJ 


■^ 


be  quite  absurd  to  suppose  that  the  legislature  had  provided  a  mode  of 
trying  contested  elections,  and  that  by  it  the  frauds  that  may  occur,  or 
be  charged  to  have  occurred  in  them,  or  in  any  part  of  the  process  of 
the  election,  cannot  be  tried.  It  would  be  quite  absurd  to  say  that  the 
legislature  has  given  the  mode  of  trying  title  to  an  office,  which  cannot 
try  whether  the  title  of  either  party  is  tainted  with  fraud,  for  then  the 
mode  provided  would  almost  alwa^'S  be  inadequate  and  fruitless.  The 
authority  that  tries  the  title  must  have  authority  to  try  all  warrants 
that  are  made  for  or  against  it  that  are  necessary  to  the  decision. 

Does  the  warrant  that  the  relator  was  thrown  off  his  guard  by  the  \ 
defendant's  declaration  that  he  would  not  use  his  certificate,  and  thus 
failed  to  apply  to  court  to  prevent  the  defendant  from  using  it ;  does 
this  make  a  case  that  the  court  is  authorized  to  hear  and  decide? 
Clearly  not.  We  do  not  say  that  any  court  could  have  lawfully  inter- 
posed. But  if  it  could,  it  is  not  at  all  averred  that  the  defendant 
made  use  of  any  language  to  the  relator,  or  of  any  language  or  other 
acts  to  any  person  for  the  purpose  of  misleading  or  deceiving  the  rela- 
tor, or  inducing  him  to  neglect  his  rights,  and  therefore  there  is  no 
valid  averment  of  fraud,  though  the  word  fraudulently  is  very  often 
used. 

And  moreover,  it  has  already  appeared  to  us  that  it  was  not  at  all 
because  of  some  misunderstanding  by  the  defendant  that  the  relator 
failed  to  claim  his  right  at  the  proper  time  and  place,  but  because  he 
himself  had  combined  with  others,  forming  and  endeavouring  to  main- 
tain an  irregular  organization  of  the  council,  and  admitting  to  seats  in 
it  persons  who  were  charged  to  be  without  title.  Had  he  not  done 
this,  he  would  have  presented  his  certificate  in  proper  time  and  before 
the  proper  authorities,  and  his  claim  would  have  been  regularly  heard, 
and  we  must  presume  it  would  have  been  rightly  decided.  We  have 
no  right  to  suspect  the  contrary. 

We  cannot  of  course  draw  to  this  court  jurisdiction  of  the  case  on 
the  ground  of  the  allegation  that  the  defendant  presented  a  fraudulent 
certificate,  and  was  fraudulently  admitted  on  it ;  for  if  we  should  do 
this  on  such  grounds,  we  should  open  the  way  for  the  admission  of  all  C^'J^»^*^ 
cases  of  contested  election,  and  should  be  fairly  chargeable  with 
usurpation. 

The  argument  went  a  little  out  of  the  case  presented  by  the  infor- 
mation, in  referring  to  the  other  disputed  seats  in  the  same  council, 
and  in  alleging  that  unless  we  interfere,  the  political  party,  which  in 
right  is  entitled  only  to  a  minority  of  members,  will  have  a  majority  of 
them,  and  will  therefore  have  the  control  in  the  election  of  city  officers. 

If  this  be  so,  it  is  much  to  be  regretted,  but  we  have  no  authority  to 
inquire  of  the  fact.  It  must  be  very  plain  to  every  thinking  mind  that 
there  is  nothing  in  this  suggestion  that  tends  to  prove  that  the  court 
has  any  authority  to  interfere.  Where  the  whole  duty  of  judging  of 
any  matter  is  committed  to  others,  it  would  be  sheer  usurpation  for  us 
to  take  the  decision  out  of  their  hands.     Plain  morality  forbids  it. 


^^^.,..   .n^,  f 


N.' 


156  FURMAN   V.   CLUTE. 

The  evil  coiTiplained  of  can  be  only  transient,  but  it  is  not  so  with 
the  decisions  of  this  court  —  they  live  after  us.  They  stand  recorded 
as  examples  to  be  followed  in  the  future.  And  we  desire  it  to  stand 
as  an  example  that  we  judge  no  man  in  matters  wherein  we  are  not 
authorized  to  judge  him ;  that  we  assume  no  authority  not  given  to  us 
by  the  constitution  and  laws,  even  to  effect  a  purpose  that  may  appear 
greatly  beneficial.  "We  do  good  when  we  exercise  a  vested  authority 
in  the  correction  of  wrong,  though  we  may  sometimes  perform  our 
duties  erroneously.  We  do  evil  when  we  usurp  authority  even  in  order 
to  do  good.  If  the  election  law  is  defective,  the  legislature  is  compel 
tent  to  amend  it ;  we  cannot  do  it.     And  if  we  set  aside  the  law  of  the  o 

land  in  order  to  effect  a  purpose,  we  become  merely  arbitrary.  .Jf^^^"^ ' 

The  motion  is  discharged,  at  the  costs  of  the  relator.  ^  A        vM*^ 

-V-  PEOPLE  EX  REL.  FURMAN  v.  CLUTE.  .  "^  ^^^^^ 

1872.     50  .v.   y.  451.  A--^/  •,  V^/},^  il^ 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court.,' v  ^ 
in  the  third  judicial  department,  affirming  in  part  and  reversing  in  part  '*  "Nj^ 
a  judgment  entered  upon  the  decision  of  the  court  upon  trial  at  Special  ,  <jV 
Term.     Reported  below,  42  How.  Pr.  157.  i^^ 

This  action  was  brought  to  oust  defendant  from  the  office  of  su-      j^J^ 
perintendent  of  the  poor  of  the  county  of  Schenectady  and  to  put  re-    ^ 
lator  in  possession.  . .-  .A  ^  <  j 

At  a  city  election  held  in  April,  1S71,  said  Clute  was  duly  elected  w/****^ 
supervisor  of^tljg.  fifth  ^ivf^rd.  accepted  the  office,  and  discharged  its  \^jt^ 
duties  until  the  12tW~ffay  of  December,  1871,  when  he  resigned.  \^^ 

At  the  general  election  in  1871  the  office  of  superintendent  of  the  *^  ^. 
poor  was  to  be  filled  by  the  electors  of  the  county  of  Schenectady,  ^y^*"*^ 
The  relator,  Furman,  and  the  defendant,  Clute,  were  both  candidates  v/^^ 
for  said  office,  and  were  voted  for  by  the  electors.  The  whole  number  >  kjO^ 
of  votes  was  4,676,  of  which  Clute  received  2,448  votes  and  Furman  ^  •  ( 
2,228.  Of  the  votes  given  for  Clute,  295  were  given  in  the  fifth  ward^A.*^'^""^ 
of  the  City  of  Schenectady,  which  then  constituted  one  election  \^/\r^ 
district.  Clute  was  declared  elected,  and  having  filed  his  official  bond  /\ 
and  taken  the  oath  of  office,  he  on  the  first  day  of  January,  1872,  ■  Vc* 
entered  into  said  office  and  still  continues  tlierein.  W^  I 

Previous  to  January  1,  1872,  the  said  Furman  took  the  oath  of  office 
and  tendered  and  deposited  with  the  county  clerk  a  bond  in  due  form 
and  sufficiency  as  superintendent  of  the  poor  of  said  county,  and 
claimed  the  said  office. 

There  was  no  proof  of  actual  notice  of  Clute's  ineligibility  to  any  of 
the  electors  of  said  county,  nor  proof  of  any  facts  from  which  notice 
could  be  implied  other  than  his  holding  the  office  of  supervisor  of  the 
fifth  ward.  ,  ^'-      { 

1%X°"    i;::Jr^ '^^^^^^^^^  *^^^ V 


>  c  <• 


'^ 


\y\Ay-^^^V^ 


* 


t^  --b' 


FURMAN   V.   CLUTE.  157 

The  Special  Term  decided  tliat  defendant  was  disqualified  from 
holding  the  office ;  that  his  election  was  void,  and  conferred  upon  him 
no  title  to  the  office  ;  that  there  being  no  proof  o^  notice  to  the  electors 
of  such  disqualification  nor  of  facts  from  which  knowledge  or  notice 
could  be  presumed,  neither  of  the  candidates  acquired  title  to  the  office, 
and  the  election  was  a  failure.  It  thereupon  ordered  judgment  ousting 
the  defendant  from  the  office  without  costs  to  either  party.  Judgment 
was  entered  accordingly.  The  General  Term  affirmed  the  judgment  so 
far  as  that  defendant  be  ousted  from  the  office,  but  reversed  it  so  far 
as  it  adjudged  that  the  relator  was  not  entitled  to  the  office,  and 
directed  judgment  that  he  is  so  entitled,  and  gave  him  his  costs. ^ 

•  •  •  •  •  •  ,  ,  ,  »i^ 

FoLGER,  J.     The  first  question  to  be  considered  on  this  appeal  is  I  ti^-^ 
whether  Clute  was  eligible  to  the  office  of  superintendent  of  the  poor.  \  S'  • 
[This  point  was  discussed  and  decided  in  the  negative.]  _' 

•  ••..,  ^ 

The  second  question  to  be  considered  is  whether  Furman,  the  relator,  I  ^^j^^ 
was,    at   the   genexal  election__of    1871,    duly   elected   to    the^'oHTce.  wb-^ 

Neither  a  majority  nor  a  plurality  of  all  the~balloti~fouiid  in  the'lSoxes  X.>-^~- 

were  for  him.     He  had  but  a  minority  of  them.  »JU>-^k«Ji-^ 

It  is  the  theory  and  the  general  practice  of  our  government  that  the 
candidate  who  has  but  a  minority  of  the  legal  votes  cast  does  not 
become  a  duly  elected  otHcer.  But  it  is  also  the  theory  and  practice  of 
our  government,  that  a  minority  of  the  whole  body  of  qualified  electors)  . 

may  elect  to  an  office,  when  a  majority  of  that  body  refuse  or  decline 
to  vote  for  any  one  for  that  office.  Those  of  them  who  are  absent 
from  the  polls,  in  theory  and  practical  result  are  assumed  to  assent  to 
the  action  of  those  who  go  to  the  polls;  and  those  who  go  to  the  polls, 
and  who  do  not  vote  for  any  candidate  for  an  office,  are  bound  by  the 
result  of  the  action  of  those  who  do ;  and  those  who  go  to  the  polls 
and  who  vote  for  a  person  for  an  office,  if  for  any  valid  reason  their 
votes  are  as  if  no  votes,  they  also  are  bound  by  the  result  of  the 
action  of  those  whose  votes  are  valid  and  of  effect.  As  if,  in  voting 
for  an  office  to  which  one  only  can  be  elected,  two  are  voted  for,  and  \r»^  j|y^* 
their  names  appear  together  on  the  ballot,  the  ballot  so  far  is  lost. 
The  votes  are  as  if  for  a  dead  man  or  for  no  man.  They  are  thrown 
away ;  and  those  who  cast  them  are  to  be  held  as  intending  to  throw 
them  away,  and  not  to  vote  for  any  person  capable  of  the  office.  And 
then  he  who  receives  the  highest  number  of  earnest  valid  ballots,  is  the 
one  chosen  to  the  office.  ■ 

AVe  may  go  a  step  further.     They  who,  knowing  that  a  person  is    (Le^-^^- 
ineligible  to  office  by  reason  of  any  disqualification,  persistently  give   v_n^51a''~^' 
their  ballots  for  him,  do  throw  away  their  votes,  and  are  to  be  held  as 
meaning  not  to  vote  for  any  one  for  that  office.     But  when  shall  it  be 
said  that  an  elector  so  knows  of  a  disqualification  rendering  ineligible 
the  person,  and  knowing,  persistently  casts  for  him  his  ballot?     There    '«-vO'"-y' 

1  Arguments  and  part  of  opinion  omitted. — Ed. 


158  FUEMAX   V.   CLUTE. 

may  be  notice  of  the  disqualifying  fact,  and  of  the  legal  effect  of  it, 
given  so  directly  to  the  voter,  as  that  he  shall  be  charged  with  actual 
knowledge  of  the  disqualification. 

There  may  be  a  disqualifying  fact  so  patent  or  notorious,  as  that 

knowledge    in    the    elector   of   the   ineligibility  may  be  presumed  as 

matter  of  law.     In  modern    times  Lord  Denmax,  C.  J.,  thus  puts  a 

case  :   "  No  one  can  doubt  that  if  an  elector  would  nominate  and  vote 

only  for  a  woman  to  fill  the  ofhce  of  maj'or,  or  burgess  in  parliament, 

his  vote  would  be  thrown   away;    there  the  fact  would  be  notorious, 

and  every  man  would  be  presumed  to  know  the  law  upon  that  fact." 

Gosling  v.  Veley,  7  Ad.  &  Ell.,  X.  R,,  406-439  ;  53  Eug.  Com.  Law, 

n\sjiSi      ^^^'     ^^  ^^^®  same  case,  the  learned  judge  says  that  "the  result  of 

the  decisions  appears  to  be  this :  where  a  majority  of  electors  vote  for 

^^  •  ^  a  disqualified  person,  in  ignorance  of  the  fact  of  disqualification,  the 

»«v-M,^-*f^        election  may  be  void  or  voidable,  or,  in  the  latter  case,  be  capable  of 

f.   .  aV3,  "-^  being  made  good  according  to  the  nature  of  the  disqualification.     The 

objection  may  require  ulterior  proceedings  to  be  taken  before  some 

competent  tribunal,  in  order  to  be  made  available ;  or  it  may  be  such 

ii^  as  to  place  the  elected  candidate  on  the  same  footing  as  if  he  never 

\  had  existed,  and  the  votes  for  him  were  a  nullit3^"     And  then,  re- 

k!v  "^  ferring  doubtless  to  the  viva  voce  manner  of  voting  in  England,  and 

to  the  manner  of  keeping  of  poll-books  there,  and  to  the  fact  of  the 

number  of  electors  there  being  small,  so  that  for  whom  each  elector 

has  voted  is  known,  and  he  may  be  safely  allowed  to  recall  his  vote 

for  an  ineligible  person,  and  give  it  for  another  eligible,  the  learned 

judge  continues :   "  But  in  no  such  case  are  the  electors  who  vote  for 

him  deprived  of  their  vote  if  the  fact  becomes  known  and  is  declared 

while  the  election  is  still  incomplete.     They  may  instantly  proceed  to 

another  nomination  and  vote  for  another  candidate.     If  it  be  disclosed 

afterward,  the  part}'  elected  may  be  ousted  and  the  election  declared 

void  ;  but  the  candidate  in  the  minority  will  not  be  deemed  ijjso  facto 

elected.     But  where  an  elector,  before  voting,  receives  due  notice  that 

a  particular  candidate  is  disqualified,   and  yet  will  do  nothing  but 

tender  his  vote  for  him,  he  must  be  taken  voluntarily  to  abstain  from 

exercising  his  franchises." 

**^'^.        ,^  Vi  To  which  we  add,  that  not  only  must  the  fact  which  disqualifies  be 

^^"^'"^  known,  but  also  the  rule  or  enactment  of  law  which  makes  the  fact 

>rs       ^ ,         thus  effectual. 

A  '\  In  the  multitude  of  cases  in  which  the  question  has  arisen,  we  think 

that  up  to  this  point,  there  is  no  essential  difference  of  result.  All 
agree  that  there  must  be  prior  notice  to,  or  knowledge  in  the  elector  of 
fact  and  law,  to  make  his  vote  so  ineffectual  as  that  it  is  thrown  away. 
But  some  say  that  if  there  be  a  public  law,  declaratory  that  the  ex- 
istence of  a  certain  fact  creates  ineligibility  in  the  candidate,  tlie 
elector  having  notice  of  the  fact,  is  conclusively  presumed  in  law  to 
have  knowledge  of  the  legal  rule,  and  to  be  deemed  to  have  voted  in 
persistent  disregard  of  it.     Others  deny  that  the  maxim,   ^'■Ignonintia 


FURMAN   V.  CLUTE. 


159 


%H 


UV, 


>.it»  ^-J 


juris  exciiset  neminem  "  (even  with  the  clause  of  it,  "  quod  quisque  scire 
tenetur"  not  often  quoted,  and  of  which  we  are  reminded  by  the  very 
thorough  brief  of  the  learned  counsel  for  the  relator),  can  be  carried 
to  that  length,  and  insist  that  there  does  not  apply  to  this  question  the 
rule  that  all  citizens  must  be  held  to  know  the  general  laws  of  the  laud, 
and  the  special  law  affecting  their  own  locality. 

That  maxim,  in  its  proper  application,  goes  to  the  length  of  denying 
to  the  offender  against  the  criminal  law  a  justification  in  his  ignorance 
thereof ;  or  to  one  liable  for  a  breach  of  contract,  or  for  civil  tort,  the 
excuse  that  he  did  not  know  of  the  rule  which  fixes  his  liability.     It 
finds  its  proper  application  when  it  says  to  the  elector,  who,  ignorant 
of  the  law  which  disqualifies,  has  voted  for  a  candidate  ineligible,  your 
ignorance  will  not  excuse  you  and  save  your  vote  ;  the  law  must  stand, 
and  your  vote  in  conflict  with  it  must  be  lost  to  you.     But  it  does  not 
have  a  proper  application  when  it  is  carried  further,  and  charges  upon 
the  elector  such  a  presumption  of  knowledge  of  fact  and  of  law  as 
finds  him  full  of  the  intent  to  vote  in  the  face  of  knowledge,  aiTdrto  so 
persist,  in  casting  his  vote  for  one  for  whom  he  knows  that  it  cannot 
be  counted,  as  to  manifest  a  purpose  to  waste  it.     The  maxim  itself 
concedes  that  there  may  be  a  lack  of  actual  knowledge  of  the  law. 
For  it  is  ignorance  of  it  which  shall  not  excuse.     Then  the  knowledge 
of  tbej.aw,  to  w^hich  each  one  is  held,  is  a  theoreticaT  knowleclgel  ancTi 
tEe^octriue  urged  upon  us  would  carry  a  theoretical  knowledge  of  the 
statute  further  than  goes  the  statute  itself.     The  statute  but  makes  / 
ineffectual  to  elect  the  votes  given  for  one  disqualified.     The  doctrine  j  *j-^->— ^  a\ 
would  make  knowledge  not  actual,  of  that  statute  thus  limited,  waste 
the  votes  of  the  majority,  and  bring  about  the  choice  to  office  by  the  .^_ij  ^^^^ 
votes  of  a  minority.     We  are  not  cited  to  nor  do  we  find  any  decision         ^  i    .,j.,^ 
to  that  extent  of  any  court  in  this  State.     The  industrious  research  of  ,^>-u/v 

the  learned  counsel  for  the  relator  has  found  some  from  courts  in  sister^  ^ 

States.      Gulick  v.   New^  14   Ind.  97   is  to  that  effect.     Carson  v.\  H-*'-    ^*^ 
3IcPhetridge,   15  id.  331,  folloAvs  the  last  cited  case.      Hatcheson  v.  \  '■'    '  **  •-^ 
Tilden,i:  Har.  &  McH.  279,  was  a  case  at  nisi  j^rius,  and  is  to  that    ^V^'^;^ 
effect.     With  respect  for  these  authorities,  we  are  obliged  to  say  that     ~^^    "*'  ^ 
they  are  not  sustained  by  reasoning  which  draws  with  it  our  judgment.    Cv-^^""^^ 
Commonneallh  v.  Bead,  2  Ashmead,  261,  is  also  cited.     But  that  was 
a  case  of  a  board  of  twenty,  assembling  in  a  room  to  elect  a  county 
treasurer.     On  motion  being  made  to  elect  vica  voce,  a  protest  was 
made  that  the  law  under  which  they  were  acting  prescribed  a  vote  by      \   ^  ^ J 
ballot.     Thus  actual  notice  of  law  and  fact  was  brought  directly  to      H''*'-^ 
each  elector  before  voting.     Nineteen  persisted  in  voting  viva  voce. 
These  were  held  to  be  wasted  votes.     One  voted  by  ballot ;  and  his 
vote  was  held  to  prevail,  and  the  person  he  voted  for  to  be  elected.! 
Commonwecdth  v.  Cluley,  56  Penn.  St.  Rep.  270,  is  also  cited.     But 
the  language  of  the  court  there  is  :   "  The  votes  cast  at  an  election  for 
a  person  who  is  disqualified  from  holding  an  office  are  not  nullities. 
They  cannot  be  rejected  by  the  inspectors,  or  thrown  out  of  the  count 


l£vO>vj; 


W*^^ 


>^ 


/(..^ 


/)_._ 


160 


FURMAN    V.    CLUTE. 


-*-n 


^>"'"'»:'. 


v. 


by  the  return  judges.  The  disqualified  person  is  a  person  still,  and 
every  vote  thrown  for  him  is  formal."  And  that  was  the  case  of  one 
who  was  ineligible  by  reason  of  having  held  the  office  of  sheriff  of  a 
county,  and  became  a  candidate  in  the  same  county  for  the  same  office 
before  the  lapse  of  time  prescribed  by  the  Constitution ;  a  case  in  its 
facts  quite  like  this  in  hand. 

The  relator  also  cites  many  instances  of  the  action  of  legislative 
bodies  and  their  committees.  As  to  these,  a  respectable  authority  on 
these  questions  has  remarked,  "  that  they  cannot  be  said  to  afford  any 
precise  or  useful  principle,"  1  Peckwell,  500;  and  learned  counsel, 
arguing  in  support  of  the  principle  now  claimed  by  the  relator,  has 
conceded  that  "no  fixed  principle  is  established  by  the  decision  of 
committees,"  Galivay  Election  Cases,  2  Moak.  Eng.  Cases,  714 ;  and 
it  may  safely  be  said  that  they  are  not  so  conclusive  and  satisfactory 
as  judicial  determinations,  as  it  is  difficult  to  arrive  at  the  exact 
principle  upon  which  the  votes  of  so  many  as  constitute  a  legislative 
body  are  put.  Besides  that,  they  are  not  uniform,  but  quite  diverse 
in  their  results,  as  appears  from  the  citations  of  the  counsel  of  the 
relator,  and  the  instances  noted  in  56  Penn.  St.  Rep.,  supra. 

We  have  consulted  many  of  the  authorities  cited  to  us  from  the 
English  books ;  and  in  them  it  will  be  found,  we  think,  that  where  it 
was  held  that  votes  for  an  ineligible  person  would  be  treated  as  thrown 
away,  it  was  not  extended  beyond  cases  in  which  there  was  actual 
notice  of  fact  and  of  law  to  the  voters  before  their  votes  were  cast. 
Gosling  v.  Veley,  supra;  Rex  v.  Hawkins,  10  East.  211;  Clariclge  v. 
Evelyn,  5  Barn.  &  Aid.  81;  Douglass,  398  n.  [22];  Rex  v.  Parry,  11 
East.  549;  Rex  v.  Bridge,  1  Maule  &  Selw.  76. 

And  there  are  American  authorities  which  hold  that  if  a  majority  of 
those  voting  by  mistake  of  law  or  fact  happen  to  cast  their  votes  upon 
an  ineligible  candidate,  it  by  no  means  follows  that  the  next  to  him  in 
poll  shall  receive  the  office.  Saunders  v.  Haynes,  13  Cal.  145;  State 
V.  Giles,  1  Chand.  [Wis.]  112;  State  v.  Sinith,  14  Wis.  497.  And 
in  Dillon  on  Mun.  Corp.  p.  176,  §135,  it  is  stated  that  unless  the 
votes  for  an  ineligHjle  person  are  expressly  declared  to  be  void, 
the  effect  of  such  person  receiving  a  majority  of  the  votes  cast  is, 
according  to  the  weight  of  American  authority  and  the  reason  of  the 
matter  (in  view  of  our  mode  of  election,  without  previous  binding 
,  nominations,  by  secret  ballot,  leaving  each  elector  to  vote  for  whom- 
\soever  he  pleases),  that  a  new  election  must  be  had,  and  not  to  give 
the  office  to  the  qualified  person  having  the  next  highest  number  of 
votes.  And  this  view  is  sustained  by  a  preponderance  of  the  author- 
ities cited  by  the  author  in  the  foot  note,  some  of  which  are  cited 
above.  And  in  The  Queen  v.  Mayor,  etc.,  3  Law  Rep  [Q.  B.]  629, 
after  holding  that  though  the  electors  had  actual  notice  of  the  fact 
which  had  been  adjudged  by  the  courts  to  disqualify,  yet  knowledge 
or  notice  in  the  elector  of  the  adjudication  could  not  be  presumed.  It 
is  further  said :  "  It  is  not  enough  to  show  that  the  voter  knew  the  fact 


Ai* 


FURMAN   V.  CLT7TE.  161 

only ;  but  it  is  necessary  to  know  suflicient  to  raise  a  reasonable 
inference  that  he  knew  that  the  fact  amounted  to  a  disqualification. 
It  cannot  be  said  in  all  cases  that  the  mere  knowledge  of  a  fact,  which 
ill  law  disqualifies  a  candidate,  must  be  taken  to  be  knowledge  of  all 
accompanying  circumstances. " 

We  think    that   the   rule  is  this :  the  existence  of   thp  fnnt^  whir^h  :  . 
disqualifies,  and  of  the  law  which  makes  that  fact  ojpera^to  disqualify,  |  ^ 

must  be  brought  home  so  closely  and  so  clearly  to  the  knowledge  orj  Tv>>y*--^ 
notice  of  the  elector,  as  that  to  give  his  vote  therewith  indicates  ^ny^^-'^^^'^'''''^^ 
intent  to  waste'it.'  TBeTchowlecTgelnust  be  such,  or  the  notice  brought  ^  >"*-^ 
so  home,  as  to  imply  a  wilfulness  in  acting,  when  action  is  in  op- 
position to  the  natural  impulse  to  save  the  vote  and  make  it  effect- 
ual. He  must  act  so  in  defiance  of  both  the  law  and  the  fact,  and  so 
in  opposition  to  his  own  better  knowledge,  that  he  has  no  right  to 
complain  of  the  loss  of  his  franchise,  the  exercise  of  which  he  has 
wantonly  misapplied. 

To  state  a  truism ;  our  theory  of  government  by  the  people  is  upon 
the  assumption  that  the  people  as  a  whole  are  intelligent  of  their  rights 
and  interests,  and  are  honestly  and  earnestly  concerned  in  the  due  and 
wise  administration  of  affairs,  and  zealously  alive  to  the  need  of  good 
and  fitting  men  in  the  various  places  of  public  trust,  and  hold  in  high  ^^ 
esteem  the  privilege  of  suffrage,  and  are  unready  to  pretermit  its  *J"t>-^*"^^ 
exercise  or  to  exercise  it  meaninglessly.  It  is  much  to  presume,  with  '' ' 
this  as  our  starting  point,  that  any  considerable  body  of  electors  will 
purposely  so  exercise  their  right  of  electing  to  ofHce  as  that  it  shall  be 
but  an  empty  form  ;  and  that  going  through  with  outward  signs  of  an 
election  they  will  of  intent  so  cast  their  ballots,  as  that  they  will  be 
votes  wasted. 

Now  the  finding  in  this  case  is,  that  there  was  no  proof  of  actual 


\J'-vJ^ 


IV^^ 


notice  of  Clute's  ineligibility,  nor  of  any  facts  from  which  notice  could  j""  V*^l^ 
be  implied,  save  that  he  was  a  supervisor,  '^"^^ 

There  was  but  this  fact,  and  the  law  upon  the  statute  book ;  suf- 
ficient in  themselves,  as  we  hold,  to  render  him  ineligible. 

But  therefrom  to  give  the  office  to  the  relator,  it  is  first  to  be 
presumed,  as  a  matter  of  law,  that  near  300  of  those  who  voted  for 
Clute  had  knowledge  of  the  fact  that  he  was  supervisor ;  had  knowledge 
of  the  existence  of  the  act  of  18.53  ;  and  knew  that,  the  fact  and  the 
law  concurring  thus,  he  was  ineligible  to  receive  and  avail  himself  of 
their  votes  in  his  favor,  and  knew  that  their  votes  given  to  him  were 
wasted,  without  effect  upon  the  count. 

It  is  to  be  presumed  further,  that  knowing  this,  they  all,  though 
seemingly  desirous  of  taking  an  effectual  participation  in  the  choice  of 
a  person  to  the  office  of  superintendent,  deliberately  so  acted  as  that 
they  are  assumed  to  have  persisted  against  knowledge ;  determined 
to  "do  nothing  but  tender  their  vote  for  him." 

It  is  not  in  accordance  with  common  sense,  and  we  find  no  rule  or 
authority  so  stringent  as  to  compel  us  to  that  result. 


162    IN  THE  MATTER  OF  THE  MAYOR,  ETC.,  OF  NEW  YORK. 

There  is  one  other  question  remaining.  The  act  of  1829  says  that 
J)  ,  U'^'^f  rjpo  supervisor  shall  be  appointed  to  hold  the  office,  etc  ;  and  the  act  of 
^^^^v-^  18o3  says  that  no  supervisor    shall  be  elected  or    appointed  to  hold 

:>  -^^'J*^/  the  office,  etc. 

>       ,.  '  The  learned  and  ingenious  counsel  for  the  defendant  urges  that  the 

manifest  intention  of  the  legislature  was  to  inhibit,  not  the  election  or 
appointment  to  the  office  of  superintendent,  but  the  holding  of  the  two 
offices  by  the  same  person.  And  from  this  he  deduces  the  proposition 
that  when  Clute  accepted  the  office  of  superintendent  he  vacated  that 
of  supervisor,  and  could  continue  to  hold  the  former. 

We  do  not  so  think.     The  legislature  intended  that  the  same  person 

^^fji       should  not  hold  the  two  offices  at  the  same  time ;  and  to  effect  this,  it 

^\^^^^^l^  prohibited  the  election  of  a  supervisor  to  hold  the  office  of  superin- 

■w  ^"^^^        tendent.     It  made  him  ineligible,  not   merely  to  holding,  but  to  an 

\^oyjL  appointment  or  election  to  hold. 

•y^i  ^^  The  language  is  not  that  he  shall  not  hold,  but  that  he  shall  not  be 

elected  or  appointed  to  hold,  and  operates  upon  the  very  first  step  in 
the  process  toward  holding,  and  stops  that.  He  can  never  hold  but 
by  appointment  or  election ;  and  the  act  says  that  he  shall  not  be 
eligible  to  that  election  or  appointment.  So  that  he  never  can  begin 
to  hold,  and  cannot,  by  resigning  the  one  or  accepting  the  other,  bring 
himself  within  the  reason  of  the  cases  cited,  of  which  The  Peo-ple  v. 
Carrique,  2  Hill,  93,  is  one.  There  the  defendant  was  held  to  be 
eligible  to  the  office  which  he  accepted ;  but  as  that  was  held  to  be 
incompatible  with  the  one  which  he  already  filled,  his  acceptance  of 
the  last  ipso  facto  vacated  the  first. 

We  are  therefore  of  the  opinion  that  the  judgment  of  the  General 
Term  should  be  reversed,  and  that  of  the  Special  Term  affirmed.        \  VjU-a 
All  concur.  ^  _  .     .  r.    ..     k  ..^-^  V^, 


jtr- 


^ 


,1  .  Judgment  accordingly}  0       /^^O    —  V/v^^l:<lX'   ^^^^^\\J^ 


o^  .\^ 


^        IN  THE  MATTER  OF  THE   MAYOR  &c.    OF   NEW  YORJ^     ' 

1908.     193  .¥.  Y.  503.  ^    v   ^■" 

Werner,  J.^  .  .  .  Counsel  for  the  appellants  insist  that  the  ice  com- 
pany never  acquired  a  valid  title  to  the  right  to  build  and  maintaiu  a  pier 
because  the  resolution  of  the  common  council  of  the  city  of  New  York 
authorizing  the  grant  was  never  legally  adopted.    The  grant  was  madcin  ^  yv^ 
1852.     At  that  time  the  common  council  was  composed  of  two  branches,-^    ^ 
one  of  which  was  designated  as  the  board  of  aldermen,  consisting  ol  U^-^ 
one  alderman  elected  from  each  ward  for  a  term  of  two  years,  and  the  f\pfj^ 
other  of  which  was  called  the  board  of  assistant  aldermen,  consisting  .^J^K 
of  one  assistant  alderman  from  each  ward  elected  for  a  term  of  one  . 

1  See  Slate  v.  Freer,  144  Wis.  79.  ^        ' 

2  Part  of  the  opinion  only  is  given.  —  En 


^ 


IN   THE    MATTER   OF    THE    MAYOR,   ETC.,  OF   NEW   YORK.         1G3 

year.  These  two  bodies  were  vested  with  concurrent  powers,  which 
were  exercised  in  separate  sessions  at  different  times,  each  body  hav- 
ing the  right  to  amend,  reject  or  concur  in  any  ordinance  or  resolution 
by  a  majority  vote  of  the  members  elected.  The  charter  also  pro- 
vided that  there  should  be  no  joint  committees  of  the  council,  except 
a  committee  on  accounts. 

This  was  the  condition  <^f  the  charter  on  the  18th  day  of  November, 
1851,  when  the  board  of  aldermen  adopted  the  following  resolution  : 
"  Resolved  that  the  pier,  foot  of  Forty-third  street,  to  be  sold  to  Caleb 
Lindsley,  that  the  Commissioners  of  the  Sinking  Fund  fix  the  price  to 
be  paid  therefor,  the  counsel  to  the  corporation  to  prepare  the  neces- 
sary deeds,  and  the  proceeds  thereof  to  be  deposited  in  the  City 
Treasury  to  the  credit  of  the  Sinking  Fund  for  the  redemption  of  the 
City  debt."  This  resolution  was  adopted  b}'  the  board  of  assistant 
aldermen  on  the  16th  day  of  April,  1852,  and  approved  by  the  mayor 
on  the  19th  day  of  April,  1852.  It  is  the  contention  of  counsel 
for  the  appellants  that  this  resolution  never  became  effective  to  author- 
ize the  grant  to  Lindsley  because  it  was  not  adopted  b}'  both  branches 
of  the  council  in  the  same  year,  and  the  case  of  Wetmore  v.  Story,  22 
Barb.  414,  is  cited  to  support  it.  In  that  case  the  controversy  was 
over  the  validity  of  a  street  railroad  franchise  granted  under  the  same 
charter.  There,  as  here,  one  branch  of  the  common  council  adopted 
in  a  given  year  the  resolution  authorizing  the  grant,  and  the  other 
branch  of  the  common  council  adopted  the  resolution  in  the  following 
year.  In  passing  upon  the  validity  of  that  grant  the  Supreme  Court 
of  this  state  expressed  the  view  that  there  was  a  strict  analogy  between 
the  common  council  thus  constituted  and  a  national  or  state  legislature 
composed  of  two  co-ordinate  branches ;  and  that  no  act,  ordinance  or 
resolution  of  either  branch  can  be  valid  without  the  concurrence  of 
both  of  the  bodies  as  constituted  when  the  particular  measure  origi- 
nates in  either  branch.  It  is  not  to  be  denied  that  tliere  is  a  certain 
analogy  between  the  Federal  and  state  legislatures  on  the  one  hand, 
and  the  similarly  constituted  municipal  legislatures  on  the  other,  but 
it  is  an  analogy  that  can  only  be  carried  to  the  point  where  practical 
considerations  essentially  differentiate  national  or  state  legislatures 
from  similarly  constituted  common  councils,  the  co-ordinate  branches 
of  which  may  meet  at  the  same  time  or  at  different  periods,  and  whose 
work  is  of  such  a  character  that  it  can  neither  be  all  initiated  or  finished 
at  any  particular  time  or  place  of  meeting,  or  during  the  continuance 
of  any  particular  membership.  The  co-ordinate  branches  of  the 
common  council  of  the  city  of  New  York,  as  constituted  in  1851-1852, 
had  the  power  to  meet  at  the  same  time  or  at  different  times.  The 
sessions  of  these  bodies,  whether  held  together  or  at  separate  periods, 
were  continuous  in  the  sense  that  they  were  not  confined  to  a  stated 
term  which  could  only  be  brought  to  a  close  by  concurrent  adjouna- 
ment.  Some  of  these  transactions  were  obviously  and  necessarily  to 
be  transmitted  to  and  finished  by  their  successors.     This  is  one  of  the 


164        IN   THE   MATTER  OF  THE  MAYOE,  ETC.,   OF   NEW   YORK. 

fundamental  differences  between  this  common  council  and  the  state 
leo"islature.     The  State  Constitution  of  1846,  which  was  in  force  in 
1851  and  1852,  contained  the  provision  that  "if  any  bill  shall  not  be 
returned  by  the  Governor  within  ten  days  (Sundays  excepted)  after  it 
shall   have   been  presented  to  him,  the  same  shall  be  a  law  in  like 
manner  as  if  he  had  signed  it,  unless  the    Legislature  shall,  by  their 
adjournment,  prevent  its  return ;  in  which  case  it  shall  not  be  a  latv." 
The  then  existing  provisions  of  the  city  charter  were  radically  different. 
That  statute  declared  that  "  If  any  ordinance  or  resolution  passed  by 
each  board  .  .  .  shall  not  be  returned  by  the  mayor  within  ten  days 
(Sundays   excepted)   after  it  shall  have  been  presented  to  him,  the 
same  shall  become  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  close  of  the  session  of  the  common  council  shall  prevent  its  return, 
in  which  case  it  shall  not  be  a  law,  until  the  expiration  of  five  days, 
after  the  commencement  of  the  next  session  of  the  common  council, 
by  whom  the  ordinance  or  resolution  shall  be  reconsidered  if  returned 
within  such  time,  and  be  disposed  of  in  the  same  manner  and  with  like 
effect  as  if  presented  at  the  preceding  session."     L.   1849,  ch.  187, 
sec.   6.     This  sharp  contrast  between  the  phraseology  of  the  Consti- 
tution and  of  the  statute  is  significant.     The  language  in  the  charter 
was  evidently  used  to  meet  the  very  situation  that  must  have  been 
anticipated  with  reference  to  a  dual  common  council  sitting  in  separate 
divisions  on  different  days  when  there  might  be  unfinished  business  at 
"  the  close  of  the  session  of  the  common  council."     The  "  close"  re- 
ferred to  was  obviously  not  the  adjournment  of  one  of  the  co-ordinate 
bodies  on  a  particular  day  to  another  specified  time,  but  the  "  close  " 
of  the  year  when  newly-elected  members  came  in.     It  seems  to  have 
been  intended  that  despite  such  changes  in  membership  all  pending 
matters  were  to  be  disposed  of  "with  like  effect  as  if  presented  at  the 
preceding  session."     It  is  true  that  the  precise  point  here  at  issue  is 
not  provided  for  in  express  terms  in  the  charter,  but  the  language 
quoted  seems  clearly  to  recognize  the  continuity  of  the  common  coun- 
cil and  to  authorize  the  conclusion  of  the  business  of  that  body  which 
had  its  inception  in  previous  sessions  or  years.     This  has  been  the 
generally  accepted  view  of  this  and  similar  municipal  charters  in  this 
state.     For  more  than  half  a  century  the  city  of  New  York  has  pro- 
ceeded upon  this  theory,  and  other  municipalities  have  followed  her 
example.     If  we  were  now  to  adopt  the  radical  change  contended  for 
by  the  appellants,  it  would  throw  our  municipal  governments  into  great 
confusion  and  result  in  a  disturbance  of  property  rights  that  would 
entail  incalculable  loss  to  many  innocent  individuals  and  corporations. 
The  idea  may  be  very  cogently  illustrated  by  an  example  even  more 
simple  than  that  presented  by  the  facts  set  forth  in  this  record.     By 
far  the  larger  number  of  our  cities  have  common  councils  composed  of 
a  single  board  of  aldermen  elected  for  one  or  two  years,  as  the  case 
may  be.     If  such  a  body  is  not  continuous,  and  terminates  whenever 
membership  is  changed  by  election,  it  must  follow  that  all  matters  not 


GEKMAN   INSURANCE   CO.   V.   WILLIAMS,  165 

finished  at  such  times  die  with  the  particular  membership  which  origi- 
nated tliem,  and  must  be  commenced  de  novo  with  every  change  in  the 
personnel  of  the  body.  It  will  readily  be  perceived  that  the  situation 
is  one  in  which  the  logic  of  theory  must  give  way  before  the  necessities 
of  practicalness. 

It  is  familiar  knowledge  that  municipal  legislatures  have  to  deal  with 
many  matters,  such  as  the  building  of  sewers,  the  installation  of 
water  works,  the  paving  of  streets  and  the  laying  out  of  parks  which 
originate  under  one  membership,  are  carried  on  by  still  another,  and 
are  finally  finished  by  yet  another.  The  exigencies  of  practice  have 
made  this  course  necessary,  and  by  common  consent  it  has  been  fol- 
lowed. Rel3ing  upon  its  validity  tax  rolls  have  been  confirmed, 
bonds  have  been  issued,  and  an  infinite  variety  of  rights  and  obliga- 
tions have  been  created.  A  present  judicial  determination,  based 
upon  the  theoretical  views  which  governed  the  decision  in  Wetmore  v. 
/Story,  supra,  would  result  in  a  condition  of  chaos  beyond  description. 
These  are  but  a  few  of  the  considerations  which  render  it  impossible 
for  us  to  follow  the  decision  in  that  case. 


r^ 


\  PEOPLE  EX  REL.   GERMAN   INSURANCE  CO.   v.  WILLIAMS. 

A^*^  1893.     145  ///.  573. 

Shope,  J.i  The  principal  question  presented  is,  whether  mandamiLS 
"  will  lie  to  compel  acceptance  of  a  municipal  office  by  one  who,  possess- 
ing the  requisite  qualifications,  has  been  duly  elected  or  appointed  to 
the  same. 

It  is  stated  by  text  writers,  that  no  case  has  arisen  in  this  country 
involving  this  precise  question  (Merrill  on  Mandamus,  sec.  145 ; 
Dillon  on  Mun.  Corp.,  sec.  162),  and  in  the  researches  of  counsel,  and 
our  own  examination,  none  have  been  found.  There  are,  however,  a 
number  of  cases  where  analogous  questions,  involving  the  same  prin- 
ciple, have  been  elaborately  discussed  and  determined  in  the  State  and 
federal  courts.  Very  many  English  cases  are  found,  in  which  it  has 
been  held  that  it  was  a  common  law  offense  to  refuse  to  serve  in  a 
public  office,  to  which  one  had  been  elected  or  appointed  under  com- 
petent authority  ;  and  that  'mandamus  will  lie  in  such  case  to  compel 
the  taking  of  the  official  oath,  and  entering  upon  the  discharge  of  the 
public  duty.  It  is  objected  that  these  cases  do  not  show  that  manda- 
mus would  lie  for  the  refusal  to  accept  public  office,  prior  to  the  fourth 
year  of  James  the  First.  If  the  contention  be  true,  it  is  unimportant 
whether  the  particular  remedy  was  by  mandamus,  by  the  ancient  com- 
mon law,  or  not.  The  important  subject  of  inquiry  is,  whether  it  was 
a  common  law  duty  to  accept  and  discharge  the  duties  of  a  public 
municipal   office.     The   writ   of   'mandamus   was   in  use   as  early   as 

1  Statement  of  facts  and  part  of  the  opinion  omitted.  —  Ed. 


166  GERMAN   INSURANCE   CO.   V.  WILLIAMS. 

the  14th  and  loth  centuries.  Rex  v.  Camhridge  University,  Fort.  202  ; 
Rex  V.  Dr.  Goioer^  3  Salk.  230.  It  appears  from  Dr.  Widington's 
case  (A.  D.  1673),  1  Levinz,  23,  that  mandamus  had  been  in  use  as 
early  as  in  the  times  of  Edward  2d  and  Edward  3d,  between  1307 
and  1377. 

Originally  it  was  a  letter  missive  from  the  sovereign  power,  com- 
manding the  party  to  whom  it  was  addressed  to  perform  the  act  or 
duty  imposed.  Later  it  obtained  sanction  as  an  original  writ,  emana- 
ting from  the  King's  bench,  where,  by  fiction  of  law,  the  King  was 
always  present.  But  it  does  not  seem  to  have  been  frequently  used, 
nor  adopted  as  the  remedy  to  compel  the  acceptance  of  office,  until 
late  in  the  17th  century.  In  modern  times  the  uses  of  the  writ,  and 
the  purposes  to  which  it  will  be  applied,  has  been  greatly  enlarged, 
and  it  has  come  into  general  use  wherever  there  is  a  legal  duty  im- 
posed, and  no  other  remedy  is  provided  by  law  for  a  failure  to  dis- 
charge it,  and  in  many  other  cases  against  those  exercising  an  office 
or  franchise,  where  there  may  be  another  remedy,  but  it  is  less  direct 
and  effective.  In  this  State,  as  in  most,  if  not  all,  the  States  of  the 
Union,  the  proceeding  is  regulated  by  statute.     Ch.  87,  R.  S. 

The  common  law  of  England,  so  far  as  the  same  is  applicable  and 
of  a  general  nature,  and  all  statutes  or  acts  of  the  British  parliament 
made  in  aid  of  and  to  supply  the  defects  of  the  common  law  prior  to 
the  fourth  year  of  James  I.  (excepting  certain  statutes),  and  which  are 
of  a  general  nature  and  not  local  to  that  kingdom,  are,  by  our  statutes, 
made  the  rule  of  decision  until  repealed  by  the  legislature.  Thereby 
the  great  body  of  the  English  common  law  became,  so  far  as  appli- 
cable, in  force  in  this  State. 

It  is  held  in  numerous  English  cases,  that  by  the  common  law  it  was 
the  duty  of  every  person  having  the  requisite  qualification,  elected  or 
appointed  to  a  public  municipal  office,  to  accept  the  same,  and  that  a 
refusal  to  accept  such  office  was  punishable  at  common  law. 

[The  court  here  examined  a  number  of  English  cases  and  other 
authorities.] 

It  follows,  necessarily,  that  if  to  refuse  the  office  is  a  common  law 

offense,  and  punishable,  as  suchrtBat  a  legal  duty  attaches  to  the  person 
to  take  upon  himself  the  ofHce,  which  may  now  be  enforced  hj  m.andg.mM.^i. 
While  offices  of  this  class,  in  P^ngland,  were  accepted  as  a  burden, 
they  have  not  been  generally  so  regarded  in  this  country.  Under  our 
system  of  local  government,  even  the  smallest  offices  are  generally 
accepted,  either  because  they  are  supposed  to  lead  to  those  which  bring 
higher  honors  and  greater  emoluments,  or  because  of  a  sense  of  duty. 
To  this  fact,  and  perhaps  to  the  prevalent  but  mistaken  idea,  that  one 
holding  a  public  office  may  resign  at  will,  may  be  attributed  the  want 
of  decision  in  this  country  upon  the  precise  question  at  issue.  The 
cases  bearing  upon  this  question,  in  this  country,  have  ordinarily 
arisen,  where  the  incumbent  has  sought  to  resign  from  public  office. 


GERMAN   INSURANCE   CO.   V.   WILLIAMS.  167 

And  it  has  been  uniformly  held,  that  the  power  to  resign  did  not  exist, 
or  resignation  become  effective  to  discharge  the  officer  from  the  public 
duty,  until  accepted  by  lawful  and  competent  authority.  In  Eaicards 
V.  United  States,  103  U.  S.  471,  Edwards  had  been  elected  super- 
visor of  the  town  of  St.  Josephs,  Berrien  county,  Mich.,  on  April  3, 
1876,  and  entered  upon  the  duties  of  his  office,  and  on  the  7th  of  June 
following,  resigned,  in  writing,  and  filed  the  same  with  the  town  clerk. 
No  action  was  alleged  to  have  been  taken  by  the  township  authorities, 
and  the  question  was :  "  Was  the  resignation  complete  without  an 
acceptance  of  it,  or  something  tantamount  thereto,  such  as  the  appoint- 
ment of  a  successor."  The  court  holds  that  it  was  not,  and  sa3^s : 
"In  England  a  person  elected  to  a  municipal  office  was  obliged  to 
accept  it,  and  perform  its  duties,  and  he  subjected  himself  to  a  penalty 
by  a  refusal.  An  office  was  regarded  as  a  burden,  which  the  appoin- 
tee was  bound,  in  the  interest  of  the  community  and  good  government, 
to  bear."  And  it  is  said,  that  it  followed  from  this,  as  a  matter  of 
course,  that  after  the  office  was  assumed,  it  could  not  be  laid  down  at 
will.  And  that  court  holding  that  the  common  law  rule  prevailed  in 
Michigan,  the  judgment  awarding  a  peremptory  writ,  compelling  the 
performance  of  the  duty,  as  supervisor,  etc.,  was  affirmed. 

In  the  case  of  HoJ:e  v.  Henderson,  4  Dev.  (N.  C.)  1,  it  is  said,  in 
passing  upon  the  question  there  at  issue:  "  An  officer  may  certainly 
resign,  but  without  acceptance  his  resignation  is  nothing,  and  he  re- 
mains in  office.  It  :s  not  true  that  an  office  is  held  at  the  will  of  either 
party.  It  is  held  at  the  will  of  both."  And  after  saying  that  the 
acceptance  of  resignations,  in  respect  of  lucrative  offices,  has  been  so 
much  a  matter  of  course  that  it  has  become  the  common  understand- 
ing that  to  resign  is  a  matter  of  right,  but  the  law  is  otherwise,  it  is 
said:  "The  public  has  aright  to  the  service  of  all  the  citizens,  and 
may  demand  them  in  all  ci\Tl  departments  as  well  as  the  military." 
In  The  State  v.  Ferguson,  31  N.  J.  L.  107,  the  question  was,  whether 
the  respondent,  at  the  time  of  the  service  of  the  writ  of  mandamus, 
was  an  overseer  of  highways,  etc.  The  respondent  proved  that  before 
the  service  of  the  mandamus  he  had  sent  in  his  resignation  of  said 
office,  on  which  certain  of  the  township  committee  had  endorsed  ac- 
ceptance. It  was  insisted  that  the  officer  had  a  right  to  resign  at  will, 
and  that  the  mere  notification  of  the  proper  officers,  of  the  fact,  relieves 
him  from  performance  of  the  official  duty.  The  Chief  Justice,  after 
reviewing  the  common  law  authoi'ities,  says:  "I  think  it  undeniable, 
therefore,  that  upon  general  principles  of  law,  as  contained  in  judicial 
decisions  of  the  highest  authority,  the  refusal  of  an  office  "  of  the  class 
to  which  the  one  under  consideration  belongs,  was  an  offense  punish- 
able by  a  proceeding  in  behalf  of  the  public.  Regarding,  then,  the 
doctrine  of  the  law  as  established,  it  seems  to  be  an  unavoidable 
sequence  that  the  party  elected,  and  who  is  thus  compelled  by  force 
of  the  sanction  of  the  criminal  law  to  accept  the  office,  cannot  after- 
wards resign  it  ex  mero  motu.     If  his  recusancy  to  accept  can  be  pun- 


168  GERMAN    INSURANCE   CO.    V.    WILLIAMS. 

isbed,  it  cannot  be  that  he  can  accept,  and  immediately  afterwards,  at 
his  pleasure,  lay  down  the  office.  The  same  principle  has  been  more 
or  less  directly  announced  in  Van-Orsdale  v.  Hazard,  3  Hill,  243; 
London  v.  Headen,  76  N.  C.  72  ;  Wiaegar  et  al.,  etc.  v.  lioe,  1  Cowen, 
258  ;  Peo2)le  v.  Supervisors  Burnett  Tp.,  100  111.  332  ;  Badger  v.  U.  S., 
93  U.  S.  599. 

The  reason  assigned  in  Rex  v.  Larwood,  1  Salk.  168,  for  the  public 
duty  is,  '•  that  the  King  hath  an  interest  in  every  subject  and  a  right 
to  his  service,-  and  no  man  can  be  exempt  from  the  office  of  sheriff  but 
by  act  of  parliament  or  letters  patent."  Under  our  form  of  govern- 
ment, the  principle  applies  with  even  greater  force  than  under  a  mon- 
archy. In  a  republic  the  power  rests  in  the  people,  to  be  expressed 
only  in  the  forms  of  law.  And  if  the  duty,  preservative  of  the  com- 
mon welfare,  is  disregarded,  society  may  suffer  great  inconvenience 
and  loss,  before,  through  the  methods  of  legislation,  the  evil  can  be 
corrected.  Upon  a  refusal  of  officers  to  perform  their  functions, 
effective  government,  2)''o  tanto,  ceases.  All  citizens  owe  the  duty  of 
aiding  in  carrying  on  the  civil  de^jartmeuts  of  government.  In  civil- 
ized and  enlightened  society  men  are  not  absolutely  free.  The  burden 
of  government  must  be  borne  as  a  contribution  by  the  citizen  in  return 
for  the  protection  afforded.  The  sovereign,  subject  only  to  self-im- 
posed restrictions  and  limitations,  ma}^  in  right  of  eminent  domain, 
take  the  property  of  the  citizen  for  public  use.  He  is  required  to 
serve  on  juries,  to  attend  as  witness,  and,  without  compensation,  is 
required  to  join  the  posse  comitatus  at  the  command  of  the  representa- 
tive of  the  sovereign  power.  He  may  be  required  to  do  military  ser- 
vice at  the  will  of  the  sovereign  power.  These  are  examples  where 
private  right  and  convenience  must  yield  to  the  public  welfare  and 
necessity.  It  is  essential  to  the  public  welfare,  necessary  to  the  pres- 
ervation of  government,  that  public  affairs  be  properly  administered  ; 
and  for  this  purpose  civil  officers  are  chosen,  and  their  duties  pre- 
scribed by  law.  A  political  organization  must  necessarily  be  defective, 
which  provides  no  adequate  means  to  compel  the  observance  of  the 
obvious  duty  of  the  citizen,  chosen  to  office,  to  enter  upon  and  dis- 
charge the  public  duty  imposed  by  its  laws,  and  necessary  to  the 
exercise  of  the  functions  of  government. 

It  is  admitted  by  the  demurrer,  that  the  respondent  was  legally 
appointed  town  clerk  of  the  town  of  Mount  Morris.  The  office  is 
connected  with,  and  necessary  to,  the  levy  of  taxes  to  carry  on  the 
municipal  concerns  of  the  town  and  administration  of  its  local  juris- 
diction. It  is  shown,  that  there  was  a  public  necessity,  as  well  as 
that  relators  had  a  private  interest  in  the  performance  of  the  duties  of 
that  office.  No  election  had  been  held  in  the  town  since  the  annual 
town  meeting  of  1891.  Numerous  persons  had  been  appointed  to  said 
office,  but  it  remained  vacant,  and  the  duties,  consequently,  undis- 
charged. It  is  admitted  by  the  demurrer,  also,  that  claims  against  the 
town,  in  favor  of  the  relator,  to  a  large  amount,  had  been  audited  by 


GERMAN    INSURANCE    CO.    V.    WILLIAMS.  169 

the  board  of  town  auditors  of  said  town,  and  allowed,  and  certificate 
thereof  duly  made,  as  provided  by  law,  but  that  the  same  could  not  be 
delivered  to  or  filed  with  the  town  clerk,  because  of  such  vacancy  in 
said  office,  nor  could  the  aggregate  amount  thereof  be  certified  to  the 
county  clerk  of  said  county,  to  be  levied  and  collected  as  other  town 
taxes.  It  is  conceded,  that  the  respondent  was  eligible  to  the  office ; 
that  a  vacancy  therein  existed  ;  that  he  was  appointed  conformably  to 
the  law,  and  duly  notified  thereof.  Sees.  1,  2,  3,  art.  10,  ch.  139, 
R.  S.  The  statute  provides  that  every  person  appointed  to  the  office  of 
town  clerk,  before  he  enters  upon  the  duties  of  his  office,  and  within 
ten  days  after  he  shall  be  notified  of  his  appointment,  shall  take  and 
subscribe,  before  some  justice  of  the  peace,  etc.,  the  oath  or  affirmation 
of  office  prescribed  by  the  constitution,  and  within  eight  days  there- 
after file  the  same  in  the  office  of  the  town  clerk.  Sec.  2,  art.  9,  ch. 
139,  R.  S.  Sec.  3  of  the  same  article  provides,  that  if  any  person 
elected  or  appointed  to  said  office  shall  neglect  to  take  and  subscribe 
the  oath,  and  cause  the  same  to  be  filed  as  aforesaid,  such  neglect 
shall  be  deemed  a  refusal  to  serve.  And  sec.  7  of  the  same  article 
provides:  "If  any  person,  elected  to  the  office  of  .  .  .  town 
clerk  shall  refuse  to  serve,  he  shall  forfeit  to  the  town  the  sum  of 
$25.00."  One  of  the  special  duties  enjoined  upon  a  town  clerk  is : 
"  He  shall  annually,  at  the  time  required  by  law,  certify  to  the  county 
clerk  the  amount  of  taxes  required  to  be  raised  for  all  town  purposes." 
Sec.  4,  art.  12,  ch.  129,  R.  S.  Sees.  127  and  128,  of  ch.  120,  R.  S., 
provide  that  the  county  clerk  shall  determine  the  rate  per  cent,  upon 
the  valuation  of  the  property  of  towns,  etc.,  that  will  produce  not  less 
than  the  net  amount  of  the  sums  certified  to  them  according  to  law,  to 
be  extended  by  the  county  clerk  upon  the  equalized  valuation  of  prop- 
erty in  such  town,  etc.  The  only  mode  provided  by  law  by  which  a  tax 
can  be  levied  upon  the  property  of  a  town,  for  the  payment  of  its 
debts,  or  current  expenses,  is  by  the  certificate  of  the  town  clerk  of 
the  town  to  the  county  clerk,  as  thus  prescribed.  It  is  apparent, 
therefore,  that  a  public  necessity  exists  for  the  discharge  of  the  public 
duty. 

It  is  insisted,  that  the  legislature  having  provided  a  penalty  for  the 
refusal  to  accept  the  office,  that  that  remedy  is  exclusive,  and  that  a     i 
payment  of  the  penalty  imposed  was  intended  to  be  in  lieu  of  the  ser-   \  ^  ■ 
vice.     ^\'e  cannot  concur  in  this  view.     The  purpose  of  imposing  the  ^,^.,^.. , - 
penalty,  was  to  enforce  the  acceptance  of  the  office  and  performance     /r^l  ,  ^-^ 
of  its  duties,  and  the  statute  cannot  be  construed  as  intending  that 
the  person  chosen  should  be  discharged  from  the  duty  by  payment  of 
the   penalty,  and  thereby  the  purposes  of  the  creation  of   the  office 
frustrated,    and   the    public   duty  remain   unperformed.     Anthorities 
supra.     It  is  to  be  presumed  that,  had  the  legislature  intended  that 
the  payment  of  the  fine  should  be  in  lieu  of  the  service,  they  would 
have  so  enacted,  and  not  having  done  so,  the  duty  remains,  notwith- 
standing the  imposition  of  the  fine  or  penalty.     High,  Ext.  L.  Rem., 
334,  and  supra. 


{e^t^-o^i^ 


170  WELLES   V.   BATTELLE, 

It  is  also  insisted,  that  the  demurrer  should  be  sustained  for  the 
reason  that  no  demand  is  averred  to  have  been  made  upon  respondent 
to  accept  the  office  and  perform  its  duties.  It  is  alleged  that  he  was 
duly  forthwith  notified  of  his  appointment  by  the  board  authorized  by 
law  to  make  the  same  (sec.  3,  art.  10,  ch.  139,  R.  S.),  and  that  he  re- 
fused and  neglected  to  accept  the  office.  Upon  being  notified,  it  was 
his  duty  by  law  to  take  and  subscribe  the  oath  of  office,  and  file  the 
same,  and  enter  upon  the  discharge  of  the  duties. 

Relator  was  not  alone  interested,  nor  did  the  failure  of  respondent 
to  qualify  affect  its  interest  only.  On  the  contrary,  the  duty,  the 
performance  of  which  is  sought  to  be  enforced,  is  a  public  duty, 
commanded  by  public  law.  The  case  is,  therefore,  clearly  distinguish- 
able from  one  in  which  the  act  sought  to  be  enforced  is  for  the  benefit 
of  some  private  party.  In  cases  of  this  class  no  formal  demand  was 
necessary  as  preliminary  to  the  application  for  viandamus.  Peojjle 
ex  rel.  v.  Hoard  of  Education^  127  111.  624. 

We  are  of  opinion  that  the  respondent  ought  to  be  required  to 
accept  the  office  of  town  clerk  of  said  town,  to  which  he  has  been  duly 
and  legally  appointed,  to  take  and  file  the  oath  as  such  town  clerk,  as 
provided  by  law,  and  to  discharge  the  duties  of  said  office,  and  a 
peremptory  writ  of  mandamus  is  awarded  accordingly. 

Feremptory  writ  awardec_^ 

WELLES   V.   BATTELLE.  v,^-  ^ 

1811     11  Mass.  477. 


Trespass  for  taking  and  carrying  away  a  quantity  of  iron,  the  prop- 
erty of  the  plaintiffs.  The  defendants  justify  as  assessors  for  the  dis- 
trict of  Dover  for  the  year  1808.^ 

Parker,  C.  J.  This  case  comes  up  upon  an  agreed  state  of  facts, 
referring  to  the  court  the  question,  whether  the  defendants  are  liable  in 
this  action  as  trespassers,  they  having  issued  a  warrant  of  distress, 
upon  which  the  property  of  the  plaintiffs  was  taken  and  sold  for  the 
payment  of  taxes  for  the  year  1808. 

The  defendants  were  duly  chosen  and  legally  qualified  to  act  as  as- 
sessors for  the  district  of  Dover  in  the  county  of  Norfolk,  for  the  year 
1808.  And  they  duly  and  legally  assessed  the  taxes  authorized  for 
that  year  upon  real  estate  within  the  district,  belonging  to  the  plain- 
tiffs, who  were  associated  together  by  the  name  of  "  The  Boston  Iron 
and  Nail  Factory  Company,"  carrying  on  their  business  in  company 
under  that  name  in  said  Dover.  The  taxes  in  the  bill  of  assessment 
and  in  the  tax  bill  were  set  to  "  Ruggles  Whiting,  agent  for  the  Bos- 

1  Statement  of  facts,  argument  and  part  of  the  opinion  wliich  considers  otlier 
points  taken  by  the  plaintiff  are  omitted.  — Ed. 


^    -     Oq^^      <^-  -     -"-    '-^ 


WELLES    V.    BATTELLE. 


171 


,/r\- 


0 


^K 


)LOU*^'^ 


ton  Nail  Factory,"   the  said  Ruggles  being  one  of  the  company,  and 
publicly  known  to  be  their  agent. 

Several  points  have  been  niade  for  the  plaintiffs,  upon  which  they 
contend  that  tlie  taxes  have  been  illegally  assessed,  and  that  the  war- 
rant to  collect  them  was  unauthorized. 

Firstj  they  allege  that  the  clerk  of  the  district,  and  the  defendants  as' 
assessors,  were  not  duly  qualified  to  act  in  their  several  capacities ;  it  I 
not  appearing  by  the  records,  that  they  were  sworn  in  the  manner  pre-     /  ^^^_^^ 
scribed  by  law.     Upon  the  record  of  the  meeting  of  the  inhabitants  in    .     ;         , 
March,  1808,  for  the  purpose  of  electing  the  necessary  municipal  offi- 
cers, it  is  stated  that  Jesse  Draper  was  chosen  clerk  for  the  ensuing 
year ;    and  the  word  "  sworn "  was  immediately  added,   without  any 
certificate  of  his  oath.     By  the  same  record  it  also  appears  that  the 
defendants  were  chosen  assessors;  and  the  words  "  all  sworn  into  [•^>>^.v^-, 
office  "  were  added.     After  the  commencement  of  this  suit,  the  same 
person,  who  acted  as  clerk  in  the  year  1808,  added  to  the  record  words 
sufficient  to  show  that  the  clerk  w^as  sworn  by  the  moderator  of  the 
meeting,  no  justice  of  the  peace  being  present ;  and  that  the  assessoj-s 
were  sworn  by  the  clerk  on  the  evening  of  the  day  of  the  meeting.     It 
is  stated,  that  parol  evidence  exists,  that  the  several  officers  before  \^^^ 
mentioned  were  sworn  in  the  same  manner  now  appearing  from  the 
record,   as  amended    by  the   clerk.  —  And   if  the  original   entry  of 
the  clerk  is  sufficient,  or  if  he  had  a  right  to  amend  the  record,  in  the 
manner  and  at  the  time  he  did;  or  if  parol  evidence  is  admissible  to 
prove  that  the  officers  were  regularly  sworn  into  office ;  —  then  it  is 
agreed  that  judgment  shall  be  rendered  for  the  defendants  :  ■ —  unless  in 
some  other  point  the  proceeding  shall  be  found  to  be  defective. 

We  have  had  frequent  occasion  to  perceive  the  great  irregularity 
■which  prevails  in  the  records  of  our  towns  and  other  municipal  corpo- 
rations ;  and  the  courts  have  always  been  desirous  to  uphold  their  pro- 
ceedings, where  no  fraud  or  wilful  error  was  discoverable.  Too  niuch 
strictness  on  subjects  of  this  nature  would  throw  the  whoU-  bod}'  pol- 
itick  ill  to  coiifusion.  '  Foi*  IF  cannot  be  expected  that,  in  all  the  cor- 
porations, persons  will  be  every  year  selected,  who  are  capable  of 
performing  their  duty  with  the  exactness  which  w'ould  be  useful  and 
convenient.  As  no  town  or  district  officer  can  lawfully  exercise  his 
office,  until  he  is  sworn  in  the  manner  required  by  law,  pains  should  be 
taken  to  have  certificates  of  the  oaths  made  out  by  the  moderator  or 
justice  of  the  peace,  as  the  case  may  be  ;  and  the}'  should  be  filed 
among  the  papers  of  the  corporation.  But  when  the  clerk  administers 
the  oath,  it  is  sufficient  that  he  enters  it  of  record  in  the  manner 
adopted  in  the  present  case,  when  the  record  was  amended.  The  first 
entry  made  by  the.j:;l£xk.  kfixe^  j-as  certainly  defective  i  and  ifmaybe 
questioned,  whether  in  a  recent  transaction  it  would  be  held  sufficient. 
But  we  are  of  opinion,  that  the  defect  is  properly  cured  by  the  subse- 
quent entry  of  the  existing  clerk,  he  being  the  same  person  that  offi- 
ciated at  the  time  of  the  first  entry.     A  sheriff  may  amend  his  return, 


U- 


172  WELFORD   V.   WILLIAMS. 

according  to  the  truth,  at  any  term  subsequent  to  that  when  the  pre- 
cept is  returnable ;  he  being  liable  for  a  false  return,  if  he  abuses  the 
power.  Anonym.,  1  Pick.  196.  Adams  et  al.  v.  Robinson  et  al.  and 
trustee,  1  Pick.  461.  Atkins  v.  Sawyer,  1  Pick.  354.  Thacher  v.  3fil- 
ler,  13  Mass.  270.  Commonwealth  v.  Parker,  2  Pick.  550.  And  there 
is  as  much  reason  for  a  clerk  to  have  this  power,  although  after  elec- 
tions have  intervened,  if  at  the  time  he  undertakes  to  amend  he  is  in 
office,  and  amends  only  what  was  done  by  him  when  he  was  in  the 
same  office  before.  If  he  states  what  is  not  true,  he  may  be  punished 
for  fraudulent  conduct  in  his  office;  and  he  will  be  sufficiently  watched 
by  interested  parties,  to  render  a  deviation  from  truth  neither  safe  nor 
easy.  In  this  case  it  is  agreed  that  the  amendment  in  the  record  is 
consistent  with  the  truth  of  the  case.  How  far  parol  evidence  is"~ 
admissible  to  prove  that  an  oath  was  administered,  when  no  minute 
appears  on  the  record  to  prove  it,  need  not  now  be  decided.  We  do 
not  determine,  that  a  moderator  of  a  town  meeting,  who  is  not  a  certi- 
fying officer  by  law,  but  is  occasionally  vested  with  authority  to  admin-  • 
ister  an  oath,  when  no  justice  of  the  peace  is  present,  may  not  aid  by 
his  testimony  a  defective  record,  in  which  there  is  a  minute,  but  an 
informal  one,  of  his  having  exercised  this  occasional  authority. 


k- 


STATE   EX  REL.    WELFORD   v.    WILLIAMS. 

1903.     110  Tenn.  549. 

Neil,  J.-^  This  was  a  proceeding  instituted  in  the  chancery  court  of 
Shelby  county  for  a  mandamus  upon  the  defendant,  as  mayor  of  the  city 
of  Memphis,  to  compel  him  to  allow  the  relator  to  examine  the  corpora- 
tion books  of  the  said  city  of  Memphis  with  an  expert  accountant. 
An  alternative  writ  was  issued  by  the  chancellor,  to  which  the  defend- 
ant responded.  Thereupon  the  relator  demanded  the  peremptory  writ 
on  the  pleadings  as  they  then  stood.  The  chancellor  denied  the  relief 
sought,  and  complainant  has  appealed  and  assigned  errors. 

We  pass,  now,  to  a  statement  of  our  conclusions  upon  the  general 
question  of  law  as  to  the  right  of  a  citizen  and  taxpayer  of  a  city  to 
make  an  examination  of  the  books  and  papers  of  the  city.  In  stating 
these  conclusions  we  shall  not  discuss  the  authorities  above  referred  to 
or  attempt  to  reconcile  their  conflicts.  After  considering  all  of  these 
authorities  and  the  whole  subject  involved,  we  shall  state  what  we 
believe  to  be  the  sound  principles  applicable  to  the  matter. 

In  theory  the  right  of  examination  is  absolute,  but  in  practice  it  is 
.^^  at  last  only  u  matter  of  discretion,  because  such  application  is  likely, 
■    at  any  time  to  be  refused  on  the  part  of  the  custodian  of  the  books_ 

1  Part  of  the  opinon  only  is  given.  — Ed. 


WELFORD   V.   WILLIAMS.  173 

« 

and  papers  sought  to  be  examined,  and  then  the  right  must  be  enforced  i^-     "  "^ 
by  mandamus,  and  this  writ  is  not  of  absolute  right,  ])nt  morcly  of  '    - 
discretion,  to  Seawarded  only  in  a  proper  case  ;  tiie  facts  clMimud  as 
authorizing  its  issuance  to  be  judged  of  in  every  case  by  tiie  court, 
and  the  writ  to  be  awarded  or  withheld  upon  a  consideration  of  all  the 
circumstances  presented.     So,  while  the  right  is,  in  theory,  absolute, , 
yet  it  is  in  practice  so  limited  by  the  remedy  necessary  for  its  enforce- 1        ,,x^>--\ 
ment  as  that  it  can  be  denominated  only  a  "  qualified  rig^L"  \  V"'"'^    ' 

The  right  to  an  examination  for  a  special  purpose,  as,  for  example, 
to  obtain  specific  information  to  use  in  a  litigation  between  the  appli- 
cant and  third  parties,  or  between  the  applicant  and  the  cor[)oration, 
and  the  like  cases,  while  not,  in  principle,  standing  upon  higher 
grounds,  yet  is  the  more  easily  grantable,  because  it  does  not  involve 
so  much  time,  and  so  much  inconvenience  to  the  custodian  of  the 
books  and  papers,  and  so  much 'interruption  of  business,  as  in  case 
of  a  general  examination. 

Yet  it  cannot  be  doubted,  under  a  state  of  facts  showing  it  to  be\U°'^  "^  '^'■" 
important  to  the  public  interest  that  the  general  examination  of  the  I 
books  of  a  municipality  should  be  had,  that  the  court  should  allow  | 
such  examination  at  the  suit  of  one  who  is  a  citizen  and  taxpayer  of 
the  corporation. 

The  right  rests,  not  only  on  the  ground  that  the  books  are  public 
books,  but  also  on  the  same  princi[)le  that  authorizes  a  taxpayer  to 
enjoin  the  enforcement  of  illegal  contracts  entered  into  by  the  munici- 
pality, county,  or  State,  for  the  protection  of  the  applicant  and  all 
other  taxpayers  from  illegal  burdens.  And  it  is  obvious  that,  in 
making  and  enforcing  such  application,  the  taxpayer  acts,  in  a  very; 
real  sense,  not  only  for  himself,  but  for  all  other  taxpayers,  and  acts,  \ 
therefore,  in  the  capacity,  as  it  were,  of  a  trustee  for  all.  -^ 

It  must  be  admitted,  also,  that  the  exercise  of  such  power,  if  pru- 
dently and  carefully  guarded,  cannot  be  otherwise  than  salutary, 
because  the  knowledge  that  it  can  be  exercised  b}-  a  citizen  and  tax- 
payer, and  may  be  exercised  when  the  public  good  shall  seem,  on 
sound  reasons,  to  demand  it,  cannot  result  otherwise  than  in  producing 
an  added  sense  of  responsibility  in  those  who  administer  the  affairs  of 
municipal  corporations  and  in  inducing  a  greater  carefulness  in  the 
discharge  of  the  trusts  imposed  upon  them  by  their  fellow  citizens 
under  the  sanctions  of  law. 

Yet  it  is  equally  true  that  such  general  examinations  must  neces-j}tr'«^^^ 
sarily  to  some  extent  interrupt   the  ordinary   and   usual  course  of  I  ;,v^  .gz.^iP'^ 
business  in  public  offices,  and  require  of  the  officers  in  charge  thereof/  :  L^X** 
some  additional  duties  for  the  time  being.     And  it  follows,  from  this,' 
tiiat  such  examinations  should  not  be  lightly  granted,  or  permitted 
with  unnecessary  frequency ;  that  the  occasion  should  be  grave  and 
important;  and  that  the  person  seeking  the  examination  should  bei     ^ 
trustworthy  and  reliable,  and  at  all  times  and  at  every  stage  subject 
to  the  supervision  of  the  court,  to  the  end  that  there  may  be  no  op- 


174 


WELFOED   V.   "WILLIAMS. 


CA. 


>-■ 


■t'' 


Ol.'Vs-**''^ 


>^ 


pression  practiced  under  the  guise  of  doing  service  to  the  public,  and 
that  the  safety  of  the  books  and  records  subjected  to  the  examination 
shall  be  continually  provided  for.  All  of  these  matters  fall  within  the 
principle  that  the  granting  of  permission  to  make  the  examination 
rests  in  the  sound  discretion  of  the  court,  in  the  form  of  granting  or 
withholding  the  writ  of  mandamus. 

It  only  remains  to  determine  whether  the  occasion  shown  in  the 
present  case  is  of  sufficient  gravity  to  move  the  discretion  of  the  court. 

The  case  presented,  as  drawn  from  the  petition  and  answer,  is  that 
the  period  of  the  examination  sought  covers  the  space  of  five  years, 
during  which  time  many  millions  of  dollars  have  been  collected  by  the 
city  administration  and  expended ;  that  during  1902  there  were  receipts 
to  the  amount  of  $1,067,916.09  and  disbursements  to  the  amount  of 
$1,060,053.89,  and  the  city  borrowed  from  one  bank  $53,357.04,  on 
which  $3,172.36  was  paid,  from  another  bank  $52,135.43,  on  which 
$2,982.17  interest  was  paid,  and  from  another  bank  $22,922.33,  on 
which,  $552.99  interest  was  paid,  aggregating  $135,122.32,  and  that 
during  the  previous  year  there  was  borrowed  $101,361 ;  that  the 
taxes  collected  from  year  to  year  from  the  taxpayers  of  the  city  are 
already  very  heavy  and  very  burdensome ;  and  that  the  mayor,  not- 
withstanding the  great  revenues  collected,  a  liberal  exercise  of  the 
power  to  borrow  money,  and  the  recent  session  of  the  legislature,  to 
which  application  could  have  been  made  for  an  increase  of  the  means 
of  raising  taxes,  if  the  property  of  the  city  could  bear  more,  found  it 
iiuecessary,  shortly  before  the  petition  was  filed,  to  resort  to  the  ex- 
traordinary expedient  of  calling  a  meeting  of  two  hundred  prominent 
6itizens  of  Memphis  to  devise  ways  and  means  to  pave,  repair,  and 
"round  up "  the  streets  of  the  city. 

Under  such  a  state  of  facts,  we  think  it  not  unnatural,  and  not  un- 
reasonable, that  the  taxpayers  of  the  city  should  desire  to  have  the 
books,  papers,  and  vouchers  of  the  city  looked  into,  to  the  end  that 
they  may  fully  learn  the  financial  condition  of  the  municipality;  and 
we  think  the  facts  stated  make  a  case  sufficient  to  justify  the  court  in 
allowing  the  general  examination  sought  in  the  petition. 

Indeed  the  conclusion  as  to  the  propriety  of  making  such  general 
examination  is  substantially  conceded  in  the  answer  of  the  defendant, 
in  the  fact  that  he  replies  that  he  has  set  on  foot  just  such  examina- 
tion, through  a  committee  of  citizens  selected  by  him  and  agreed  to 
by  the  legislative  council. 

However,  the  creation  of  that  committee  can  in  no  wise  interfere 
with  the  present  proceeding.  After  judicial  proceedings  have  been 
started,  as  in  the  present  case,  for  the  purpose  of  obtaining  a  general 
examination,  they  cannot  be  thwarted  by  the  appointment  of  a  com- 
mittee on  the  part  of  the  custodian  of  the  books,  or  his  associates  in 
authority,  to  make  an  examination  in  lieu  of  the  one  sought.  The 
right  of  the  petitioner  to  have  his  application  passed  upon  on  its 
merits  became  complete  upon  the  filing  of  the  petition,  and,  of  course, 


LAUXTZ   V.   SULLIVAN. 


175 


Ofinnot  be  aflfected  by  subsequent  acts  of  the  defendant,  taken  without 
his  consent,  and  to  which  he  was  not  a  party.  It  follows  that  the 
writ  must  be  allowed,  if  the  defendant  is  the  custodian  of  the  books 
and  papers  of  the  city  in  such  a  sense  that  he  can  be  justly  called  upon 
to  produce  them. 

Upon  examination  of  the  laws  governing  the  city,  and  the  rights  and 
power  of  its  mayor —  as  shown  in  Watkin's  Digest  (1902),  pp.  19,  20, 
sees.  4  and  6;  id.,  p.  22,  sees.  1,  2;  id.,  p.  170,  art.  5  —  we  think 
sufficient  powers  are  vested  in  the  mayor  to  make  it  proper  that  the 
writ  should  go  against  inm  for  the  alfowance  of  the  examination  sought 
in^tlie  petition  and  for" flVe  production  of  the  books  and  papers. 

It  results  that  the  decree  of  the  chancellor  must  be  reversed,  and  the 
cause  remanded  for  the  entry  of  a  decree  awarding  the  peremptory 
writ;  but  such  decree  shall  reserve  to  the  court  below  the  powers  aud\  ^^^^ 
control  above  indicated  to  prevent  oppression,  and  for  the  preservation  ^j^  ^ 
of  the  books  and  papers,  and  to  so  order  the  examination  as  to  inter- 
fere as  little  as  practicable  with  the  transaction  of  current  business, 
and  said  decree  shall  reserve  to  each  party  the  right  from  time  to 
time  to  apply  to  the  court  for  instructions  pending  the  examination. 


3 


^ 


r 

v: 


Y 


AJ^ 


Section   2.     Departments, 
a.    Legislative. 


LAUNTZ   V. 


PEOPLE     EX  REL. 
1885.     113  M.  137. 


SULLIVAN. 


*-■<■ 


^ 


;^ 

Sheldon,  J.^  Defendant's  appointment  to  the  office  is  admitted  by 
appellee's  counsel.  The  filing  of  his  oath  of  office  is  averred  in  the 
plea,  and  not  traversed  by  the  replication.  It  therefore  stands  con- 
fessed b}-  the  pleading,  so  that  all  there  is  remaining  to  give  to  defend- 
ant complete  title  to  the  office  of  city  treasuser,  is  the  approval  by  the 
city  council  of  his  official  bond. 

There  were  eight  members  in  the  body  of  the  cit}^  council ;  a  quorum 
consisted  of  five  members ;  the  mayor  had  a  casting  vote  in  case  of  a 
tie.  On  the  21st  and  29th  of  May,  the  council  being  duly  convened, 
and  all  its  members  present,  a  motion  was  made  to  approve  defendant's 
bond,  and  one-half  of  the  aldermen  (four)  and  the  mayor  voted  to 
approve  the  bond,  and  the  other  half  refused  to  vot_e^  This  action  of 
the  city  council,  it  is  claimed  by  appellant,  was  a  valid  approval  of  the 
bond.  On  the  other  hand,  it  is  contended  that  a  majority  of  the  alder- 
men present  (five)  should  have  voted  in  its  favor,  to  make  a  valid 
approval  of  the  bond.     In  respect  of  the  election  of  corporate  officers, 


:^\ 


1  Statement  of  facts  and  arguments,  and  part  of  the  opinion  discussing  a  question 
of  practice,  are  omitted.  —  Ed. 


^ 


176  I^rSTT   r.    5T1I~a5:. 

biie  -w^  setLe^l  nale  b.  as  ^aaei  m  W' ::z  :-n  Corponiions.  see.  54C: 
"ft  ~  "  ~  :        —  si  m 


tbej 

mtetbeact 
tcc  i>Laers.    ecu  «  c  a  of  tbe 


--H 


i  7  of  v:-«es.~     Aixi  see        . 

-.  Jjri.  Iz7 :  ^«r  x.  FoxcrafL  ±  Burr.  1      '      'Jom- 


ther  claim  n r     ~  z^i.  zo  eases  .. 

^cSead  ^  tiae  trxnicieaaQ  of  osniier  cocporEte   . 
atterease  &  mA}>j?iij  of  ih'^^e  pi,ejml  most  To4e  for  Ji 

Tkere  i§  i^nze^fitj  for  tin  fietaietiaA.     GMiba^  r.  T 
=^  _  -iies.  C7». 

I"  '-  '-^'-XT  imsisced  Tb..^t  %&  ihe  city  cfeyta  dkecU  tbe  ertr  cc 

- '  -  — :z:jc  tbe  role  of  i&  pcBoeecbags  in  eoBfoani^  iriiii  the  _  - 

'  of   de:Zber3.irre  boiSe&,'^  ^kc  paoSaBestBij  rale  ^lineli  is 

.  bj  sadu  boiies  ^j'^ili  obtna,  mad  th&t  thxt  rok  reqinres  Hie 

r^iaii  to  tnaaaet  bosoesa,  sad  tkai  -Kiiere  t^  roQ  is 

-^ras  aokd  bxvs  az«  Xakem-,  sad  it  appears  fron  t^  re- 

.-. tbct  BO  tjttonaM  is  TotaDs-   Vrs^iieae  smt  be  sos- 

&  qiiKMa  aniwieLS.     We  do  aot        .    :  wjeranary  here  to 
i^x»  tieae  |ww»tiiaM  of  appeflee's  cooDseL  for.  eoneefins  tbeir 
e  tMnk  tbfe  ad3r>-  -  -  ekjC- 

T  areirrrFf  rr  Trtf  rmnrl 


Ji  emme  hrAj.  and  -ve 

t-  -               e~ 

-      -               "'  -  «L  and 

i:  -  ■  -   r.f  fli^ 

r  '  .       .                jeed- 

i.-  _  le  of  e '                       TiD  of  tbe  eoimefl 

iR  iBfe  i               .  m  t£«e               ,         ,e  officer?    "^e 

sec  IOC  x;,T.  ;  -'/v-er 

fote  in  leapfeet  :f  ;  =:iff.rre3 

45f  '  -e  crtj               -  sLc/tild  be 
,-ai  of               jeT''s  boiid.     T--=   -sboald 

be  aa   THE.--  -  of  tbe 

coBBBcfl  are  -^-^i^;  -. ^^-y-  >-               -                                       :-  -•   .-- 


msHJJW  T.  ?r-r.i  vav.  177 

tiiere  is  a  tie.  an«i  tiie  niAvor  msy  Tote  "^liL.  stba'  ade,  lad  msie  s 
majority.  W:  -  :  is  tiiere  ""iiv.  wia^a  aJl  t^  ^Ig^  Haembers  ire 
present-  s~  '  "  ^  ~  '    ''^u  refiise  w  TDte,  tie  aaxjor  ^soGid  so* 

vot^r  ■«-''!:  :-^;  -:  — :    -— ;r.  and  naake  &  majoriSy?     Wiy  May  it 

not  ce  _  :  _  -  ered  as  e'lnrs^ent  to  a  tie.  ccwprtiing  ti»e  iBeailiers  "wro  -Sd 
rot  vote  as  votrng-  tl_  "ary  iray  froiB.  m-e  ~ _"   ■       Tfaas  woc^i  i»r 

f uiSlIing  the  porposes  of  the  la"*"  in  gj^'    _    -  r  a  csstmg  voiie 

ir  ctise  of  a  tie.     It  w—  '    --     -  -ji^  n         _  azil  pre-' 

ve-t  the  oc-stroclioQ  of  -  ,-  -   -  -     .    '   '     — ^ "  — -  t>e  grr- 

xrz  e^r<;-t  to-  the  «ili.  ot  the  :_  "  _.  ^  i=  the  gt}T"err'~g'  roie  in  lise 

act-on  of  corporarlons.  AngeH  Jc  A— es  oq  G^rporalioms.  see.  ^3^. 
What  the  proprietv  of  giv  nig  to  a  refosal  to  rote  iDore  potency  ihaji  to 
a  vote  cast  ? — of  allowing  a  gai    " "        ^  ^  ' '  '  ~       "  r  ~te 

refusing  to  vote  of  ii}«:>re  e5ei;:  ._  _-    --- — _  — 
•which  one  is  a  member,  than  voting :     The    •:  -  _ 

where  the  o:£eer  sppc'inted  fails  to  qiialify  w^iai*  tea  da]*^  aner  r-- 
oerrrn-g  notice  of  his  apo«:>i!itn:ent.  the  omee  shall  be  aifled  hy  a  lie— 
appointment,  did  cot  reado'  tise  appoiataBSit  f«d  on  faaiHug  to  ijEtahr- 
within  the  tit:  -  '  :t  sadh  faOoie  was  bet  a  ctmoc  of  f"'^--^ire  of  tn^ 
oince.  which  :__   _  ^7  eoaaefl  Mstit  waive,  ajid  tfcey  d: :  wsrre   - 

in  proceeding  afterward  in  the  a|3fJcoval  of  ^e  bond.     Ckiemsf&x. 
y5  IIL  6:21 :  Caidej  v.  Pwpie^  id.  f-t^. 


L  BIGELOW    -.   HILLMAX. 

ISoi-     IT  AT*.  52. 

The  brief  statement  nlea  by  'she  defendants  set  fordi.  tiat  tii-e  i!L>r** 
(n  :\-:  was  a  common  and  pcbMo  highway,  etc..  and  the  a^ts  by  them 
done,  were  what  they  might  lawfnlly  do  in  passng  and  repairing  the 
same. 

Before  the  alleged  trespass  the  town  of  UnerrDCfe  had  dtseontzaoed 
the  way.  and  the  p^ainrif  nad  enclotsed  it  and  pet  it  ia  a  star*  of 
eultivatioD.'^ 

•  .  •  ■  ' 

y. :  -i.  J.  ...  It  is  objeote-A  tna.:  :.:e  town  meerir^  -  -  -  :::n  t>-:  -  -  -  —as 

^  -;:^5Stvi  to  discontinue  this  way.  was  adxximed  :,  ^  7  j-^:>.  to 

tj-c  time  when  the  plaintiff  erected  his  fences,  and  sn7;3<--.7--:-:  3.^  S^ 
the  dav  oq  which  the  defendants  cc»mmitted  thfi.  --     -  ~ra^  by 

removinii  said  fences,  and  that  said  vote  eocM  only  tajie  effect  from 
the  day  of  the  fnal  adjoumment  of  the  mt-  '    :     beean>"     "    s  con- 
-r  ■■  "--v  it  was  in  the  power  of  the  town,  at  ..  -_-  :-me  d-a      _       >  cori- 
*  -'Q  of  the  meeting,  to  reconsider  th^  vote  by  wh  ,  roai 

had  been  discontinned. 

Arf^n^«c:s  lad  id:^  of  ommb  Maided  — H^ 


"Without  considering  whether  it  would  be  competent  for  a  town  to 


lis  ^^^^  ^^  ^Cy^^  '       SWINDELL   V.    MAXEY, 


Jrecousider  a  vote,  after  the  rights  of  third  parties  had  intervened,  de- 
I  pendent  upon  such  vote,»which  maj^  well  be  doubted,  it  is  sufficient  in 
this  case,  that  the  vote  discontinuing  this  road  was  absolute  in  its 
terniSj  and  at  most,  could  be  liable  only  to  the  contingency  of  being 
reconsidered  at  the  adjourned  meeting.  That  contingency  never  hap- 
pened. The  riglits  of  the  plaintiff  under  that  vote,  if  deemed-COiitiur 
gent  until  the  tlnal  adjournment  of  the  meeting,  then  became  absolute, 
and  related  back  to  the  day  on  which  the  vote  was  actually  passe 


^<^.^^. 


SWINDELL  V.    STATE,   ex  rel.    MAXEY.  ^V*^V>^    0 

1895.     143  Ind.  153.  ;.v^^^*'^<►■^'^^^>7%^ 

Jordan,  J.     The  relators,  James  W.  Maxey  and  William  0  'Keefe,  -.^*/" 
instituted  and  prosecuted  this  action  in  the  lower  court,  in  the  name  of  ,    ^ 
the  State,  to  obtain  a  writ  of  man^[ale  against  the  appellant,  as  the        ^ 
mayor  of  the  city  of  Plymouth,  Marshall  County,  Indiana,  to  compel  ^    ^ 
him  to  recognize  each  of  them  as  members  of  the  common  council  oi-^r^ 
the  city,  and  permit  each  of  them  to  exercise  the  duties  of  the  office  of  "^^^ 
councilman.     The  application  for  the  writ  substantially  sets  forth  that  j^ 
on  April  25,  1873,  Plymouth  was  incorporated  as  a  city,  under  and  in   ,  /^. 
pursuance  of  the  general  laws  of  the  State  of  Indiana,  applicable  to  the(V*^ 
incorporation  of  cities ;  that  the  city  upon  its  incorporation  was  &\-^^y^ 
vided  iuto  three  wards,  and  that  this  division  continued  until  the  27th  \^  t, 
day  of  August,  1894,  when  the  common  council  thereof,  being  then      \ 
composed  of  six  councilmen,  at  a  regular  meeting,  by  an  ordinauce^-^^^^ 
duly  passed  and  adopted  at  said  meeting  divided  the  city  into  four-T^ 
wards,  thereby  creating  an  additional  one  which  was  designated  as  the,     r^ 
"  fourth  ward  "  ;  that  immediately  after  creating  this  ward  said  council  jj^^ 
at  the  said  meeting  did  appoint  the  relators  as  councilmen  therefrom^  v 
to  fill  the  vacancies  existing  in  said  council  by  reason  of  the  creation  t\\ 
of  the  additional  ward.     The  due  qualification  of  the  relators  as  mem-'">''^^ 
bers  of  the  council  is  alleged,  and  it  is  charged  that  the  mayor,  as  the  y\f 
presiding  officer  of  the  common  council,  has  refused  to  recognize  them  t-^v'-"^ 
or  either  of  them,  and  refuses  to  permit  them  or  either  of  them,  to  ex- 
ercise their  rights  as  such  councilmen  ;  and  that  he  had  directed  the 
clerk  not  to  call  the  names  of  said  relators  when  present  upon  occa- 
sions when  it  was  necessary  to  constitute  a  quorum,  etc."     The  appli- 
cation praj'ed  for  a  peremptory  writ  of  mandate  against  the  appellant, 
commanding  him  to  recognize  the  relators  as  councilmen  and  to  permit 
them  as  such  to  participate  iu  the  business  of  the  council  and  to  dis- 
charge the  duties  incumbent  upon  them  as  such  officers.     An  alter- 

1  "  The  right  of  reconsidering  lost  measures  inheres  in  every  body  possessing 
legislative  powers."  —  Whelpley,  C.  J.,  in  Jersey  City  v.  State,  30  N.  J.  L.  521,  529^- 


u.^^ 


SWINDELL   V.    MAXEY.  179 

native  writ  was  issued  which  embodied  the  facts  as  alleged  iu  the 
petition,  and  required  appellant  to  show  cause  why  the  prayer  of  the 
relators  should  not  be  granted.  To  this  writ  appellant  unsuccessfully 
demurred  for  insufficiency  of  facts  and  for  a  misjoinder  of  causes  of 
action.  An  answer  in  three  paragraphs  was  filed.  The  first  was  a 
general  denial.     The  second  alleged,  inter  alia,  that  the  ordinance  iu 


question  was  myalid  because  it  was  passed  in  violation  of  a  certain 
ordained_  rule  of  the  common  council  of  said  city,  which  rule  it  was 
alleged  controlled  and  governed  the  proceedings  of  the  common  couu- 
cll  in  the  adoption  of  ordinances,  and  the  rule  was  made  a  part  of  this 
paragraph.  By  the  third  paragraph,  appellant  sought  to  assail  the 
verity  of  the  alleged  proceedings  of  the  coimcTl.  The  second  paragraph 
of  "the  answer  or  return  to  the  writ,  upon  appellee's  motion,  was  struck 
out  and  suppressed  by  the  court,  upon  the  grounds  that  all  competent 
matters  therein  set  up  could  be  given  in  evidence  under  the  general 
u^aiii^l,  and  for  the  further  reason  that  the  paragraph  did  not  state 
facts  siiifficient  to  constitute  an  answer  or  return  to  the  writ.  To  this 
"I'liiiug  an  exception  was  duly  reserved.  Appellees  replied  in  denial  to 
the  third  paragraph  of  the  answer,  and  the  issues  were  in  this  manner 
joined  between  the  parties,  and  the  cause  was  submitted  to  a  jury  for 
trial.  At  the  conclusion  of  the  evidence,  the  court,  at  the  request  of 
the  ajjpellees,  instructed  the  jury  to  find  a  verdict  in  their  favor  which 
was  returned  according]}'. 

Over  appellant's  motion  for  a  new  trial,  the  court  adjudged  and  or- 
dered the  peremptory  writ  to  issue  as  pra^-ed  for  by  the  appellees. 
Various  errors  are  assigned  and  questions  presented  and  urged  by  the 
learned  attorney  for  the  appellant,  among  the  first  of  which  is,  was  the 
application  and  alternative  writ  sufficient  in  facts  to  entitle  appellees 
to  a  remedy  by  mandamus?  Upon  the  theory  that  the  ordinance  upou 
which  appellees  found  their  right  to  exercise  the  duties  of  the  office  to 
which  it  is  alleged  they  were  duly  appointed  and  qualified,  was  a  valid 
act  of  the  council,  we  are  of  the  opinion  that  this  question  must  be 
answered  iu  the  affirmative.  By  section  3531,  R.  S.  1894  (section  3096, 
R.  S.  1881),  the  mayor  is  made  the  presiding  officer  of  the  common 
council,  and  in  a  case  of  a  tie  has  the  casting  vote.  Under  section  3497, 
R.  S.  1894,  section  3062,  R.  S.  1881,  the  duty  is  enjoined  upou  him  to 
see  that  the  laws  of  the  State  and  the  by-laws  and  ordinances  of  the  / 

common  council  be  faithfully  executed  within  the  city,  and  to  exercise 
supervision  over  subordinate  officers  and  recommend  to  the  common 
council  such  measures  as  he  may  deem  to  be  for  the  common  good. 
These  are  some  of  the  latter  officer's  duties,  among  others,  prescribed 
by  the  organic  law  under  which  the  city  of  Plymouth  was  organized. 

From  the  facts  as  averred,  it  appears,  at  least,  that  the  relators  held 
a  prima  facie  title  or  right  to  the  office  which  they  claimed,  undisputed 
by  any  other  adverse  claimant ;  hence  it  follows  that  it  was  the  duty 
of  appellant,  as  mayor,  resulting  from  his  office  to  recognize  the  claims 
of  the  former  and  allow  them  to  exercise  the  duties  as  members  of  the 


180  SWINDELL   V.   MAXEY. 

common  council,  and  upon  a  refusal  to  discharge  this  duty  they  were 
entitled  to  institute  an  action  to  enforce  a  performance  thereof  by  a 
writ  of  mandamus.  Section  1182,  R.  S.  1894  (section  1168,  R.  S.  1881)  ; 
Mannix  v.  State,  115  Ind.  245,  and  authorities  there  cited;  City  of 
Madison  v.  Korhly.,  32  Ind.  74.  Under  such  circumstances,  it  is  -well 
settled  that  the  legality  and  validity  of  the  election  or  appointment  may 
be  inquired  into  in  any  proceedings  by  mxandamus  instituted  to  compel 
other  persons  to  recognize  the  claimant's  title  to  the  office,  or  when  he 
seeks  to  enter  into  it  or  otherwise  asserts  his  rights  to  act  as  a  duly 
elected  officer.  6  Am.  and  Eng.  Ency.  of  Law,  pp.  384,  385  ;  Lawrence 
V.  Ingersoll,  6  L.  R.  A.  308,  and  authorities  there  cited. 

The  two  cardinal  propositions  involved  for  a  decision  in  this  appeal 
are  :  First,  was  the  common  council  of  the  city  of  Plymouth  authorized 
,by  law  to  adopt  the  ordinance  whereby  the  additional  ward  was  created, 
.  1  from  which  the  relators  were  appointed  as  councilmen?  Second,  if  the 
council  was  so  empowered,  was  the  ordinance  in  question  legally^'' adu 
validly  adopted  ?  We  will  consider  and  determine  these  two  qu  ■'^estions 
in  their  order. 

The  following  facts  are  established  by  the  evidence^  in  the  record  : 
On  the  25th  of  April,  1873,  the  town  of  Plymouth  was  organized  as  a 
city,  under  and  in  pursuance  of  the  general  laws  of  the  State.  Tt  was 
immediately  thereafter,  under  section  3468,  R.  S.  1894  (3027,  1881), 
divided  into  three  wards,  and  its  common  council  thereby  made  to  con- 
sist of  six  members,  and  this  status  of  affairs  remained  until  August  27, 
1894,  when,  at  a  regular  meeting  of  the  council,  with  all  of  its  six 
members  present,  at  which  meeting  the  mayor,  who  was  the  predecessor 
of  appellant,  presided,  the  city  was  divided  into  four  wards  by  an 
ordinance  introduced  and  adopted  at  said  meeting. 

The  proceedings  of  the  council  after  the  introduction  of  the  ordinance 
at  the  meeting  in  question  prior  to  and  upon  its  passage,  as  shown  in 
the  evidence  given  by  the  appellees,  are  substantially  as  follows : 
"  Councilman  Reynolds  moved  that  the  rules  be  suspended  and  that 
said  ordinance  be  placed  upon  its  passage  by  one  reading.  This  mo- 
tion was  seconded  by  councilman  Hughes,  and  thereupon  councilman 
Baily  moved  to  refer  the  ordinance,  as  presented  and  read,  to  the  com- 
mittee on  ordinances  and  police."  A  vote  upon  this  motion  resulted 
in  a  tie.  Three  of  the  councilmen  voting  in  favor  of  the  motion  and 
three  against,  and  thereupon  the  mayor  cast  his  vote  in  favor  of  the 
negative  and  declared  the  motion  lost.  "Councilman  Reynolds  then, 
with  the  consent  of  his  second,  withdrew  his  motion  to  suspend  the 
I  rules.  Councilman  Tibbetts  then  moved  that  the  rules  heretofore  gov- 
1 1  eruing  the  proceedings  of  the  council,  as  printed  in  the  ordinance  book, 
I  be  annulled  and  repealed."  The  yeas  and  naj's  were  taken  on  this 
motion  to  repeal  the  rules,  and  the  result  was  that  three  of  the  council- 
men  voted  in  favor  of  the  motion,  and  three  against,  and  the  vote  being 
a  tie,  the  mayor  voted  in  the  affirmative  and  declared  the  motion  car- 
ried.   It  was  then  moved  by  councilman  Reynolds  that  the  ordinance, 


SWINDELL   V.   MAXEY.  181 

as  read,  be  placed  upon  its  passage;  this  vote  resulted  in  a  tie,  and 
was  declared  carried  by  the  mayor  casting  his  vote  in  favor  of  the 
motion.  Councihnan  Tibbetts  then  moved  that  the  ordinance,  as  read, 
be  passed  and  adopted  "  upon  the  one  reading,"  and  upon  the  passage 
of  the  ordinance  the  yeas  and  nays  were  taken  with  the  following  re- 
sult :  Messrs.  Hughes,  Reynolds  and  Tibbetts  voted  for  the  adoption 
of  the  ordinance,  and  Gretzinger  voted  against  the  adoption,  and 
Baily  and  Tanner  were  recorded  as  not  voting,  and  thereupon  the 
mayor  declared  the  motion  carried  and  the  ordinance  passed  and 
adopted.  Councilman  Baily  then  presented  a  protest  against  the 
action  of  the  council,  and  moved  that  his  protest  be  placed  upon 
record.  Upon  the  motion  of  Messrs.  Baily,  Gretzinger  and  Tanner 
voted  in  the  affirmative,  and  Messrs.  Hughes,  Reynolds  and  Tibbetts 
voted  in  the  negative,  and  the  mayor  cast  his  vote  upon  the  side  of  the 
negative,  and  declared  the  motion  lost.  Subsequent  to  the  passage  of 
the  ordinance,  in  which  it  was  declared  that  the  same  shall  take  effect 
from  and  after  its  passage,  and  at  the  same  meeting  the  council  pro- 
ceeded to  introduce  and  pass  a  resolution,  whereby  the  relators  were 
declared  appointed  and  elected  councilmen  for  the  said  fourth  ward, 
to  serve  as  such  until  the  next  general  election.  Upon  the  yeas  and 
nays  being  taken  upon  the  adoption  of  this  resolution,  those  who  voted 
in  the  affirmative  were  councilmen  Hughes,  Reynolds  and  Tibbetts. 
Baily,  Gretzinger  and  Tanner  voted  in  the  negative,  and  the  result 
being  a  tie,  the  mayor  cast  his  vote  in  favor  of  the  resolution,  and  de- 
clared the  same  adopted  ;  and  the  relators  were  thereupon  declared 
elected,  and  took  the  required  oath  of  office.  Counsel  for  appellant  /'r^ 
contend  that  the  action  of  the  council  in  passing  the  ordinance  dividing  L/ 
the  city  into  wards  and  thereby  forming  and  constituting  the  additional 
one  in  controversy,  was  unauthorized,  for  the  reason  that  the  proceed- j!^,  /^&^ 
ings  by  the  council  did  not  conform  to  section  3469,  R.  S.  1894  (section!  c\  V-*^  ' 
3038  R.  S.  1881).  This  section  provides  that  when  thirty^  resident  free-'  \<5  '^^t 
holders  of  the  ward  to  be  affected,  shall  petition  the  common  council  '^ '  " 
for  the  creation  of  a  new  ward,  or  wards,  to  be  formed  from  added 

(J— O'-i.'- 

territory^  or  by  the  consolidation  of  existing  wards,  etc.,  the  council 

shall  submit  the  question  to  the  voters  of  the  city  at  the  next  annual  "J 

election.     This  section  was  the  only  express  law  for  the  creation  of  i  \KjX  ^    ^ 

new  wards,  until  an  act  of  the  Legislature,  approved  March  4,  1891,    rwli'^  ' 

was  passed.     Acts  1891,  p.  83;  section  3470,  R.  S.  1894.     Section  1    gX'A^IiJr^^ 

of  this  act  provides  that  the  common  council  of  all  cities  in  this  State,  ^      v>^-' 

organized  under  the  general  law,   "shall  have  the  power,  and  are 

hereby  invested  with  the  authority,  to  divide  the  said  city  into  wards, 

to  change  the  boundaries  of  existing  wards,  and  to  redistrict  the  cities 

for  ward  purposes,  whenever,  in  their  judgment,  it  shall  be  deemed 

expedient  so  to  do." 

It  is  furthur  provided  by  this  section  that  no  division  into  wards  or 
change  of  boundaries,  or  redistricting  for  ward  purposes,  shall  be 
made  oftener  than  once  in  every  period  of  ten  years.     Section  2  pro- 


182  SWINDELL   V.    MAXEY. 

vides  that  the  council,  upon  doing  any  of  the  acts  enumerated  in  sec- 
tion 1,  shoU  do  so  by  ordinance,  etc.  By  section  3  all  laws  and  parts 
of  laws  in  conflict  with  any  of  the  provisions  of  the  act  are  expressly 
repealed.  By  an  act  of  the  Legislature,  approved  March  S,  1895 
(Acts  1895,  p.  173),  the  act  of  1891  was  materially  amended,  and  the 
limitation  upon  the  subsequent  action  of  the  council  was  fixed  at  two 
years.  It  is  manifest  that  the  act  of  1891  fully  invested  the  common 
council  of  such  cities  as  the  one  in  question  with  the  power  and  au- 
thority to  do  by  ordinance  these  acts,  wiien  it  was  deemed  by  it  expe- 
dient so  to  do.  First,  to  divide  the  city  into  wards  ;  second,  to  change 
the  boundaries  of  existing  waMs ;  third,  to  redistrict  the  city  for  ward 
purposes.  Empowered  in  this  manner  to  divide  the  city  into  wards,  it 
is  evident  that  the  council,  in  the  exercise  of  such  power,  by  dividing 
the  city  into  wards  de  novo  could,  as  a  natural  sequence,  create  an 
additional  ward  or  wards,  and  in  this  manner  occasion  a  vacancy  in 
the  office  of  councilman,  w^hich  the  council  would  be  authorized  to  fill 
by  appointment,  under  the  act  approved  February  26, 1891  (Acts  1891, 
p.  33).  We  cannot  presume  that  common  councils  of  cities,  w^hose 
members  are  the  servants  of  the  people,  will  abuse  the  power  thus 
granted  to  them,  and  unnecessarily  create  additional  wards  in  their 
respective  municipalities,  and  thereby  impose  upon  the  tax-payers  the 
extra  burden  of  paying  the  expenses  of  useless  or  unnecessary  officers. 
The  act  of  1S91  (section  3470,  R.S.  1894)  is  broad  and  plain  in  its 
terms  or  meaning,  and  is  not  open  to  judicial  interpretation,  unless  we 
eliminate  words  from  the  written  law,  and  this  we  are  not  authorized  to 
do.  This  statute  covei's  the  subject-matter  of  section  3469,  snpra,  and 
its  provisions  are  repugnant  thereto,  hence  it  follows  that  the  former 
has  necessarily  repealed  the  latter.  We  are,  therefore,  compelled  to 
adjudge  that  the  common  council  of  the  city  of  Plymouth  had  full^ 
warrant  and  aTfthority  under  the  act  of  .1891  to  adopt  the  ordinance, 
and  thereby  divide  the  city  into  four  wards. 

"^  The  second  proposition  with  which  we  are  confronted  is  vital  in  its 
bearing  upon  the  action  of  the  council  in  passing  the  ordinance  in 
controversy. 

The  validity  of  the  ordinance  is  essential  or  fundamental  to  the 
claims  made  by  the  relators.  If  for  any  reason  it  is  invalid,  the  rights 
of  the  latter  are  unfounded,  and  the  appellant  would  be  justified  in  his 
refusal  to  recognize  them  as  members  of  the  council,  and  hence  they 
must  necessarily  fail  in  the  prosecution  of  this  action.  On  May  26, 
1873,  the  common  council  of  the  appellant's  city  duly  passed  and 
adopted  an  ordinance  embracing  a  series  of  rules  and  regulations  for 
the  government  of  the  common  council  in  transacting  its  business,  and 
as  to  the  mode  of  proceeding  in  the  enactment  of  ordinances.  Some 
of  these  are  merely  rules  of  parliamentary  law.  Section  21  of  this 
'KJl  ordinance  is  as  follows  : 
-^rv^  "All  ordinances  shall  be  read  three  times  before  being  passed,  and 

"-"'' 'V».''    no  ordinance  shall  pass  or  he  read  the  third  time  in  the  same  meeting 


\^ 


SWINDELL   V.  MAXEY. 


183 


■^^.>j>f 


(that)  it  was  introduced :  Provided^  Ttiat  the  council  may  suspend  the  j 
rule  by  a  two-thirds  vote,  and  put  an  ordinance  upon  its  passage  by  i 
one  reading  at  the  time  it  is  read." 

There  is  no  question  but  what  this  rule  was  in  full  force  and  effect 
at  the  time  of  ihe  introduction  of  the  ordinance  under  consideration, 
and  there  is  evidence  showing  that  it  had  generally  been  recognized 
and  followed  by  the  council  in  the  adoption  of  ordinances.  It  is  the 
rule  set  up  and  relied  upon  by  appellant  in  the  second  paragraph  of  his 
answer,  in  wliich  it  was,  in  substance,  alleged  that  the  ordinance  upon 
which  the  rehitors  based  their  claim  and  right  to  be  recognized  and  to 
act  as  councilmeu,  had  been  passed  in  violation  thereof.  During  the. 
trial  the  court  permitted  the  appellant  to  introduce  this  rule  or  ordi- 
nance in  evidence,  but  subsequently,  before  the  cause  was  finally  sub- 
mitted to  the  jury,  upon  the  motion  of  appellees  the  court  struck  out 
and  withdrew  this  evidence,  over  appellant's  objections  and  excep- 
tions, and  this  action  of  the  court  was  assigned  as  one  of  the  reasons 
in  the  motion  for  a  new  trial.  The  trial  court  seemingly  justified  its 
action  in  eliminating  this  evidence  upon  the  ground,  as  insisted  by  the 
relators,  that  this  rule  had  been  repealed  as  the  result  of  the  motion 
made  by  councilman  Tibbetts  and  carried  in  the  manner  as  we  have  here- 
tofore stated,  and  that  the  same  was  not  in  force  when  the  ordinance 
in  question  was  passed 

The  verbal  motion  made  by  this  councilman  as  recorded  by  the  clerk 
by  which  it  was  sought  to  effectually  repeal  the  rules  ordained  for  the 
government  of  the  council  was,  to  say  the  least,  somewhat  indefinite. 
When  recorded  it  read:  "  That  the  rales  heretofore  governing  the  pro- 
ceedings of  council  as  printed  in  the  ordinance  book  be,  and  the  same  are 
hereby,  anyndl&d  and  repealed."" 

The  italics  are  our  own.  Ordinances  of  cities  are  held  to  be  in  the 
nature  and  chra-acter  of  local  law-T  acioptect  by  a  body  vested  wim  leg- 
islative authority,  ancl  coupled  with  the  power  to  enforce  obedience  to 
its  enactments.  The  power  with  which  common  councils  of  cities  are  '■ 
invested  to  enact  ordinances  and  by-laws  implies  the  power  to  amend, 
change,  or  repeal  them,  provided  that  vested  rights  are  not  thereby 
impaired.  But  certainly  it  cannot  be  successfully  asserted  that  the 
law  will  yield  its  sanction  to  the  mode  employed  to  repeal  the  one  by 
which  the  rule  in  controversy  was  ordained  and  established.  If  the 
procedure  by  which  the  power  of  repeal  was  attempted  to  be  exercised 
upon  the  occasion  in  question,  could  be  sustained,  then  all  that  would  be 
necessary  to  accomplish  the  repeal  of  all  existing  ordinances  of  a  city 
would^  be  the  adoption,  at  any  regular  meeting  by  the  common  council, 
of  a  mere  verbal  and  general  motion  to  that  effect,  without  any  refer- 
ence whatever  to  the  title,  number  or  date  of  passage  of  the  ordinance 
or  ordinances,  intended  to  be  repealed.  In  the  case  of  Bills  v.  City  of 
Goshen,  117  Ind.  221  (3  L.  R.  A.  261),  it  was  held  by  this  court  that  a 
defect  to  an  ordinance  could  not  be  cured  or  amended  by  moans  of 
a  motion  subsequently  made  by  a  member  of  the  council  and  put  to  a 


184  SWINDELL   V.   MAXEY. 

vote  and  carried.  In  Horr  and  Bemis  Municipal  Ordinances,  section 
61,  it  is  said:  "  Express  repeals  can  only  be  elifected  by  an  act  of 
equal  grade  with  that  by  which  the  ordinance  was  originally  put  in 
operation.  No  part  or  feature  of  an  existing  ordinance  can  be  changed 
by  a  mere  resolution  of  the  council,  even  though  signed  by  the  mayor 
and  recorded.  A  new  ordinance  must  be  passed."  See  also  sections 
63  and  64,  same  authority.  In  Jones  v.  McAlpine,  64  Ala.  511,  an 
attempt  was  made  by  a  motion  to  raise  or  change  the  license  fee  in  a 
certain  ordinance  by  the  mayor  and  board  of  aldermen  of  the  city  of 
Talladega ;  this  method  was  held  to  be  ineffectual  in  its  results.  The 
court  said  :  "  Until  an  ordinance  had  been  adopted  by  the  mayor  and 
aldermen,  changing  the  ordinance  of  May  9,  1877,  the  ordinance  re- 
mained in  full  force,  though  there  was  an  intention  to  change,  and  a 
declaration  of  the  will  of  the  board  that  it  should  be  changed." 

Considered  then  in  the  light  of  the  authorities  which  we  have  cited, 
and  the  manifest  reason  which  necessarily  underlies  and  sustains  the 
rule  which  they  assert,  the  conclusion  is  irresistibly  reached  that  the 
attempt  to  repeal  the  ordinance  which  embraced  the  series  of  rules  and 
regulations  in  question,  by  the  action  of  the  council  in  adopting^The 
motion  in  controversy,  was  ineffectual,  and  did  not  result  in  the  repeaT 
or  abrogation  of  the  rule  under  consideration.  Having  reached  this 
conclusion,  the  inquiry  arises  as  to  the  effect  of  the  operation  of  this 
rule  upon  the  ordinance  upon  which  the  relators  found  their  claims, 
and  which  was  passed  and  atlopted  as  it  appears  by  the  council  in 
violation  of  its  provisions.  It  is  said  in  Dillon  on  Municipal  Corpora- 
tions, section  288  :  "  After  a  meeting  of  the  council  is  duly  convened, 
the  mode  of  proceeding  is  regulated  by  the  charter  or  constituent  act, 
by  ordinances  passed  for  that  purpose,  and  by  the  general  rules,  so  far 
as  in  their  nature  applicable,  which  govern  other  deliberate  and  legisla- 
tive bodies."  In  section  47  of  Bemis  and  Horr,  sxipra,  it  is  said  :  "  The 
usual  statutory  direction  is  that  every  ordinance  shall  be  read  at  three 
different  meetings  before  its  final  enactment.  The  direction  is  neces- 
sary as  a  safeguard  against  too  hasty  legislation,  and  its  observance 
mandatory.  If  neglected,  the  ordinance  is  ah  initio  void."  In  Beach 
on  Public  Corporations,  section  494,  it  is  said  :  "The  mode  of  enacting 
the  ordinance  is  generally  prescribed  in  the  charter  or  an  ordinance^ 
and  their  requirements  should  be  strictly  complied  with.  So  where  the 
charter  prescribes  that  no  by-law  shall  be  passed  unless  introduced  at 
a  previous  meeting,  the  provision  has  been  held  to  be  mandator}',  and 
a  by-law  passed  in  violation  thereof  to  be  void."  In  the  case  of 
Horner  v.  Bowleyy  51  Iowa.  620.  the  question  arose  as  to  the  validity 
of  a  town  ordinance  authorizing  the  issuance  of  a  license  for  the  sale 
of  wine  and  beer.  It  appeared  that  the  council  that  adopted  the  ordi- 
nance involved  in  that  case  consisted  of  seven  members.  The  statute 
of  the  State  provided  "  that  ordinances  of  a  general  or  permanent  na- 
ture shall  be  fully  and  distinctly  read  on  three  different  days,  unless 
three-fourths  of  the  council  shall  dispense  with  the  rules."     Upon  a 


SWINDELL   V.   MAXEY. 


185 


motion  to  dispense  with  the  reading  required  under  the  rule,  four 
members  voted  in  the  affirmative,  and  none  in  the  negative;  the  mayor 
decided  the  motion  carried,  and  the  ordinance  was  adopted.  The 
court  said  :  "As  four,  the  number  who  voted  to  suspend  the  rule,  and 
pass  the  ordinance,  is  not  three-fourths  of  seven,  it  follows  that  the 
ordinance  was  not  legally  enacted.  It  was,  therefore,  void;  and  no 
valid  act  could  be  done  under  its  provisions."  The  statutes  of  Ohio 
relating  to  cities  require  that  ordinances  of  a  permanent  nature  shall 
be  read  on  three  different  days,  unless  three-fourths  of  the  members  of 
the  council  dispense  with  the  rule.  In  the  appeal  of  Camjibi'll  v.  Cin- 
ckinati,  49  Ohio  St.  463,  it  was  held  that  this  provision  was  mandatory, 
and  that  in  passing  several  ordinances  "  in  a  lump  "  it  was  requisite  to 
suspend  the  rule  as  to  each  in  order  to  render  its  final  adoption  legal 
and  valid.  In  considering  the  question  therein  involved,  the  court, 
per  Dickman,  J.,  said:  "  But_muiiicipal  corporations  act  not  by  inher- 
ent right  of  legislation,  like  the  Legislature  of  a  State.  .  .  .  They  are 
creatuiL's  of  the  btatute,  invested  with  such  power  and  capacity  only  as 
isconfencd  by  the  statute,  or  passes  by  necessary  implication  from  the 
statutory  giant,  and  their  powers  must  be  strictly  pursued.  Cooley 
Const.  Liui.,  Gth  ed.,  227.  Wlllard  v.  lullinr/ worth,  8  Conn.  247  ;  Ex 
parte  Frcmk^  52  Cal.  606.  The  rule,  therefore,  as  stated  in  numerous 
adjudged  cases  is,  that  the  mode  of  procedure  to  be  followed  in  the 
enactment  of  ordinances  as  prescribed  by  statute  must  be  strictly  ob- 
served. Such  statutory  powers  constitute  conditions  precedent ;  and, 
unless  the  ordinance  is  adopted  in  compliance  with  the  conditions  and 
directions  thus  prescribed,  it  will  have  no  force.  17  Eng.  and  Am. 
Ency.  of  Law,  p.  238,  and  cases  cited.  In  Clark  v.  Crane,  5  Mich. 
151,  the  supreme  court  laid  down  the  rule  that  '  what  the  law  requires 
to  be  done  for  the  protection  of  the  tax-payer  is  mandatory,  and  cannot 
be  regarded  as  merely  directory.'  The  requirement  that  ordinances 
.  .  .  shall  be  fully  and  distinctly  read  upon  three  different  days,  being 
designed  as  a  safeguard  against  I'asli  and  inconsiderate  legislation, 
and  being  in  a  great  degree  essential  to  the  protection  of  the  rights  of 
property,  it  should  be  deemed  a  mandatory  measure  intended  as  a  se- 
curity for  the  citizen."  The  case  of  State,  etc.,  v.  Priester,  43  Minn. 
373.  asserts  the  same  rule  and  the  reason  therefor. 

This  court  in  the  appeal  of  the  City  of  Logansport  v.  Crockett,  64 
Ind.  319,  held  that  section  3534,  R.  S.  1894  (section  3099,  R.  S.  1881), 
which  requires  that  on  the  adoption  or  passage  of  any  by-laws,  ordi- 
nances or  resolutions,  the  yeas  and  nays  shall  be  taken  and  entered  on 
the  record,  was  mandatory,  and  that  a  noncompliance  with  this  provi- 
sion rendered  the  adoption  of  the  ordinance  nugatory.  See  Dillon, 
IMun.  Corp.,  section  291.  It  is  not  necessary  that  we  should  fur- 
ther extend  the  consideration  of  the  question  or  refer  to  additional 
authorities  to  show  that  when   the  legally  prescril)ed  method   <>f  pro- 


b>A 


M^ 


cedure  in  the  enactment  of  an  ordinance  is  neglected  or  violatLul,  the 
Tatter  is  tTiei'cby  rendered  invalid  and  of  no  force  or  effect.     This  doc- 


J' 


^,:,.j   uc.-    ...^  v-^^.^,  .  _ 


^' 


louv 


186  SWINDELL   V.   MAXET. 

triue,  or  principle,  seems  to  be  firmly  settled  by  many  leading  au- 
thorities and  decisions.  The  inquiry  then  is  :  Is  the  same  principle 
applicable  when  the  procedure  is  one  prescribed  by  an  ordinance  of 
the  common  council  enacted  under  the  exercise  of  the  power  granted 
[by  the  Legislature?  There  is  no  statute  in  this  State  that  embraces 
or  contains  tlie  provisions  or  requirements,  in  regard  to  the  passage  of 
an  ordinance  by  the  common  council,  that  are  contained  in  section  21 
of  the  ordinance  in  question.  This  right  to  regulate  sucli  proceedings 
in  this  particular  respect  seems  to  have  been  committed  by  the  Legisla- 
ture to  the  common  council. 

Section  3533,  R.  S.  1894  (section ^3098,  R.  S.  1881),  among  -other 
things  provides  that  "The  common  council  may,  by  ordinance,  pre- 
scribe such  rules  and  regulations,  in  addition  to  those  herein  contained, 
for  the  qualification  and  official  conduct  of  all  city  officers,  as  they  may 
deem  for  the  public  good,  and  which  shall  not  be  inconsistent  with  the 
provisions  of  this  act."  By  section  3616,  R.  S.  1894  (section  315.5, 
R.  S.  1881),  it  is  further  provided  in  addition  to  the  powers  expressly 
granted,  that  the  common  council  shall  have  power  to  make  other 
by-laws  and  ordinances  not  inconsistent  with  the  laws  of  the  State  and 
necessary  to  carry  out  the  objects  of  the  corporation,  etc. 

By  these  provisions  plenary  powers  are  given  to  the  council  to  pass 
or  adopt  ordinances  prescribing  rules  and  regulations  not  inconsistent 
with  law,  for  its  government  and  control,  when  duly  convened  and 
acting  officially,  in  regard  to  its  proceedings  upon  the  passage  of  an 
ordinance  or  otherwise.  We  have  seen  by  some  of  the  leading  author- 
ities which  we  have  herein  cited,  that  when  the  mode  of  proceeding 
upon  the  part  of  the  council  in  the  adoption  of  an  ordinance  is  regu- 
lated either  by  the  charter  or  an  ordinance  enacted  thereunder,  this 
prescribed  mode  must  be  strictly  followed.  Ordinances  of  a  city  duly 
enacted  are  in  the  nature  of  laws,  being  the  decree  or  will  of  the  com- 
mon council,  which  body  is  vested  with  legislative  authority.  Public 
policy  demands  and  authority  sanctions  the  delegation  of  various 
powers  of  local  legislation  to  this  municipal  body.  The  ordinances 
enacted  in  the  exercise  of  these  powers  have,  within  the  corporate 
limits  of  the  city,  the  force  of  laws.  They  are  held  by  the  courts  to 
be,  within  these  limits,  as  binding  as  the  laws  of  the  State  and  general 
government,  and  are  enforced  in  a  similar  manner  and  under  like  rules 
of  construction.  AVheu  an  ordinance  is  duly  and  legally  passed,  under 
the  warrant  of  the  Legislature,  it  is  in  force  by  the  authority  of  the 
State.  Bemis  and  Horr  Munic.  Ordinances,  section  2  ;  Beach  Pub. 
Corp.,  sections  482,  486.  A  by-law  or  ordinance  Avhich  a  municipal 
corporation  is  authorized  to  adopt  is  as  binding  on  its  members  and 
otllcers,  and  all  other  persons  within  its  limits,  as  a  statute  of  the 
Legislature.  Heland  v.  City  of  Lowell,  85  Mass.  407  (3d  Allen) ; 
P'iunsylcania  Co.  v.  Stegemeier,  118  Ind.  305,  and  authorities  cited; 
Tiedeman  Munic.  Corp.,  section  153;  Dillon  Munic.  Corp.,  sections 
307,  308. 


SWINDELL   V.   MAXEY. 


187 


In  Milne  v.  Davidson,  8  Martin,  586  (La.,  5  N.  S.),  a  contract  en- 
tered into  in  contravention  of  an  ordinance  of  the  city  of  New  Orleans 
was  held  to  be  void.  The  court  said:  "  The  ordinances  of  a  corpora- 
tion while  acting  within  the  powers  conferred  upon  them  by  the  Legis- 
lature, have  as  binding  an  effect  on  the  particular  members  of  that 
corporation  as  the  Acts  of  the  General  Assembly  have  on  the  citizens 
throughout  the  State ;  and  it  is  as  much  a  breach  of  duty  to  evade  or 
violate  the  one  as  it  would  be  to  evade  or  violate  the  other.  The  moral 
or  legal  obligation  to  obey  them  is  the  same,  and  the  consequence  of 
nonobedience  ought  to  be  the  same." 

These  many  authorities  which  substantially  enunciate  and  sustain 
the  proposition  that  a  municipal  ordinance  is  a  local  law  or  statute 
(upon  which  rests  both  the  moral  and  legal  obligation  to  obey  of  all 
persons  subject  thereto),  and  that  the  results  of  a  non-compliance  with 
the  mandatory  or  prohibitory  provisions  thereof,  must  in  reason  be  the 
same  in  effect,  as  follow  the  disobedience  or  disregard  of  an  act  of  the 
Legislature  of  like  import,  warrant  the  conclusion  and  holding  that 
when  the  charter  law  of  a  city  does  not  regulate  the  mode  of  procedure 
to  be  observed  upon  the  adoption  of  an  ordinance  by  the  council,  but 
has  committed  the  authority  or  power  sa.io_jdo  to  that  body  which,  in 
pursuance  thereof,  has  prescribed  by  ordinance  an  essential  and  salutary 
rule,  mandatory  and  prohibitory  in  its  provisions  as  is  the  one  under 
consideration,  the  council  must  yield  to  it  their  obedience,  and J.ujhe^ 
eiiaeiment  of  an  ordinance  must  be  controlled  thereby^^imlaaa^sus;^ 
peuded  in  the  manner  or  by  the  vote  provided,  and  that  the  conse- 
quence of  refusing  to  substantially  comply  with  its  provision s~ or  a 
violation  of  its  inhibition  must,  in  reason,  be  the  same  as  the  non- 
compliance  with  or  a  violation  of  a  requirement  prescribed  by  the 
statute.  "'■'''""'     — -—^ 


The  section  of  the  ordinance  in  question  prescribed   substantially 
that  "All  ordinances  shall  be  read  three  times  before  being  passed. 
No  ordinance  shall  pass  or  be  read  at  the  same  meeting  in  which  it  was 
introduced."     The  word  "  all "  may  mean  every,  and  is  to  be  con- 
strued in  this  connection.      Bloom  v.  Xenia,  32  Ohio  St.  461.     We 
may,  therefore,  read  the  rule  thus  :   "Every  ordinance  shall  be  read, 
etc."     The  first  clause  is  mandatory  and  the  second  prohibitory.    Such 
a  rule  prescribed  for  the  government  of  legislative  bodies  is  recognized 
by  the  courts  as  a  salutary  one.     It  is  a  check  upon  what  sometimes  i 
might  prove  to  be  ill  advised,  prematurely  considered,  or  pernicious] 
legislation.     If  a  common  council  were  permitted  to  wilfully  ignore,} 
utterly  disobey,  and  violate  an  ordained  rule  of  this  character,  injurious 
results  to  the  inhabitants  of  the  corporation  might  and  possibly  would 
result. 

It  is,  therefore,  the  duty  of  courts  to  require  a  strict  compliance 
with  mandatory  provisions  of  the  law  of  the  character  and  purpose  of 
the  one  in  question.  A  two-thirds  vote  of  the  council  was  required 
to  suspend  the  rule  ;  this,  in  reason  at  least,  must  be  construed  and 


188 


STECKEKT   V.    EAST   SAGINAW. 


f^iJ^' 


held  to  mean  not  less  than  two-thirds  of  all  the  members  present  at 
any  meeting  of  the  council.  Atkins  v.  Phillips,  10  L.  R.  A,  158,  26 
Fla.  281.  It  appears  from  the  record,  that  the  acts  of  the  council 
antecedent  to,  and  including  the  final  passage  of  the  ordinance  creating 
the  ward  in  controversy,  received  the  votes  of,  and  were  sanctioned  by, 
three  only  of  the  six  councilmen  present  at  the  meeting.  Three  cannot 
be  held  to  be  two-thirds  of  six,  hence,  in  no  manner,  or  upon  any  view 
of  the  case,  was  a  suspension  of  the  rule  effected.  Viewed  then  in  the 
light  of  the  reason  and  logic  of  the  authorities  herein  cited,  we  are 
constrained  to  hold  and  adjudge  that  the  ordinance  having  been  passed 
in  noncompliance  with,  and  in  violation  of,  the  ordained  rule  in  con- 
troversy, it  is  invalid  and  inoperative,  and  that  the  action  of  the 
council  based  thereon  in  appointing  the  relators,  is  likewise  void,  and, 
consequently,  the  latter  cannot  successfully  maintain  this  action.  City 
ofLogausport  v.  Legg,  20  Ind.  315.  Appellant  was  entitled  to  expose 
by  sufficient  facts  in  his  answer  the  invalidity  of  the  relators'  appoint- 
ment, and  to  prove  the  same  by  evidence  upon  the  trial.  While,  per- 
haps, the  second  paragraph  of  the  answer,  or  return,  contained  some 
irrelevant  or  impertinent  facts  that  might  have  been  eliminated  upon 
motion,  still  the  facts  alleged  as  to  the  ordinance  having  been  adopted 
in  disregard  and  violation  of  the  rule  in  question  were  pertinent  and 
material  in  defense  of  the  action,  and  the  paragraph  ought  not  to 
have  been  suppressed.  Atkinson  v.  Wabash  R.  JR.  Co.,  at  last  term 
(41  N.  E.  R.  947). 

We  must  not  be  understood  as  holding  by  this  opinion  that  the 
nonobservance  of  mere  technical  rules  of  parliamentary  law  which  are 
employed  for  convenience  in  governing  the  action  of  common  councils, 
would  result  in  rendering  an  act  of  such  bodies  otherwise  valid  invalid, 
but  our  holding  is  confined  to  the  particular  rule  under  the  circum- 
\  stances  and  facts  in  question. 

From  the  conclusion  we  have  reached,  it  follows  that  the  trial  court 
erred  in  striking  out  the  second  paragraph  of  the  answer,  and  also  in 
holding  that  the  rule  had  been  repealed  by  the  motion  as  made,  and 
the  judgment  cannot  be  sustained.  It  is  therefore  reversed  and  the 
cause  is  remanded,  with  instructions  to  the  lower  courno~vacate  its 
order  awarding  the  peremptory  writ  of  mamlate,  and  to  overrule  the 
motion  to  strike  out  the  second  paragraph  of  appellant's  answer,  and 
grant  him  leave,  if  requested,  to  file  an  amended  one,  and  for  further^ 
proceedings  in  accordance  with  this  opinion.  o/*^'*'v>^  o 


V 


STECKERT  v.   EAST  SAGINAW, 
1870.     22  Mich.  104. 

CooLEY,  J.     This  is  a  bill  to  restrain  the  collection  of  an  assessment 
for  paving  Washington  street,  in  the  city  of  East  Saginaw,  with  what 


/■ 


V^ 


STECKEKT   V.    EAST    SAGINAW.  189 

is  known  as  the  Nicholson  pavement.  The  complainants  are  owners 
of  lots  in  said  city  upon  which  the  assessment  is  a  lieu,  and  they  ask 
for  a  perpetual  injunction  against  its  collection  upon  the  ground  that 
the  proceedings  to  levy  it  have  not  been  in  accordance  with  tlie  charter 
of  the  city,  which  prescribes  the  several  steps  to  be  taken  in  such 
cases.  ^  (\ 


ClJi/~«^ 


The  first  ground  of  alleged  invalidity  in  the  proceedings  is  that  the 
several  votes  in  the  common  council  ordering  the  improvement  made, 
directing  a  contract  therefor  and  the  levy  of  an  assessment  for  pay- 
ment of  the  expense  thereof,  were  not  taken  by  ayes  and  noes  as  the 
charter  requires.  I 

The  provision  of  the  charter  on  this  subject  is  that  "Whenever  re- 
quired by  two  members,  the  votes  of  all  the  members  of  the  common 
council,  in  relation  to  any  act,  proceeding  or  proposition,  had  at  any 
meeting,  shall  be  entered  at  large  on  the  minutes ;  and  such  vote  shall- 1 
also  be  entered  in  relation  to  the  adoption  of  any  resolution  or  ord^i- 
nance,  report  of  a  committee  or  other  act,  fOF  taxing  or  assessing  the 
citizens  of  said  city,  or  involving  the  appropriation  of  public  moneys.". 
S.  L.  1859,  p.  971. 

The  proceedings  in  question  were  such  that  the  votes  thereon  were 
required,  under  this  section,  to  be  entered  at  large  on  the  minutes 
whether  specially  required  by  two  members  or  not.  The  defendants 
insist  that  this  section  has  been  complied  with,  in  substance  and  in 
spirit,  in  every  instance ;  while  the  complainants  on  the  other  hand 
argue  that  a  disregard  of  its  provisions  is  manifest  throughout.  Upon 
this  point  the  evidence  of  the  minutes  must  be  conclusive,  and  if  we 
find  the  votes  entered  there  at  large,  the  objection  must  fail. 

On  looking  at  the  minutes  we  find  that  the  votes  have  uniformly  (^  _^o— J,^ 
been  entered  and  recorded  in  the  same  way ;  and  we  may  therefore 
take  the  proceedings  on  any  one  of  the  several  votes  as  a  sample  of 
them  all.     The  vote  ordering  the  contract  for  paving  the  street  to  be 
entered  into  was  had  June  29,  1868.      The  record  of  the  meeting  of    i.jo-vs^\.y-»- 
the  council  on  that  evening  begins  as  follows  :  Vm>JC-X^  " 

Regular  meeting,  Monday  evening,  June  29,  1868.  The  council 
met  pursuant  to  adjournment.  Present,  Aldermen  Buckhout,  Carlisle, 
Eastman,  Morley,  Owen,  Wood  and  Zimmerman.  —  7.  By  Alderman 
Carlisle,  "Whereas,"  etc.,  [here  follow  the  resolutions,  after  which  is 
this  minute].     Adopted  unanimously  on  call. 

Unless  the  minute  is  a  compliance  with  the  section  of  the  charter  in 
question,  it  is  not  claimed  by  the  defendants  that  it  has  been  complied 
with  at  all ;  but  their  argument  is  that  the  record  shows,  Jirst,  the 
names  of  the  several  aldermen  who  were  present  when  this  action  was 
had  ;  second,  that  the  roll  was  called  on  the  vote  ;  and  third,  that  each 
of  them,  when  the  roll  was  called,  voted  for  the  adoption  of  the  resolu- 
tions. This  being  so,  the  vote  is,  in  effect,  entered  at  large  on  the 
minutes,  and  the  repetition  of  the  names  of  the  alderman  in  the  minutes, 
when  the  precise  position  of  each  upon  the  resolutions  submitted  was 


190  STECKERT   V.  EA.ST   SAGINAW. 

already  recorded,  would  have  been  only  an  idle  ceremony,  accomplish- 
ing no  useful  purpose. 

We  have  found  ourselves  unable  to  take  the  same  view  of  this  record 

that  is  taken  by  the  counsel  for  defendants.     There  can  be  no  doubt 

^j^  ^  that  the   i^rovision  of  the  statute  which  requires  these  votes  to  lie 

,         ,  entered  at  large  on  the  minutes,  was  designed  to  accomplish  an  im- 

•■*^'''^;      .  poi'tant  public  purpose,  and  that  it  cannot  be  regarded  as  immaterial, 

►  "^V^*"^^  n6r~Tts"ol3servance  le  di^Densed  with.       Spanghr  v.  Jacohy,  14  111. 

.^y,J>Ji3=^  297;    Supervisors  of  ScJuafiq'  Co.  v.   Tlie  People,  25  111.  183.     The 

purpose,  among  other  things,  i^^to  make  the  members  of  the  common 

council  feel   the  responsibility  of  their  action  when  these  important 

measures  are  upon  their  passage,  and  to  compel  each  member  to  bear 

his  share  in  the  responsibility,  by  a  record  of  his  action  which  should 

no1t  afterwards  be  open  to  dispute.     Now  if  tlie  record  in  the  present 

case  shows  precisely  who  voted  for  the  resolution  in  question,  it  is 

apparent  that  the  object  of  the  statute  has  been  fulfilled,  and  we  may 

be  able  to  sustain  the  action,  notwithstanding  the  compliance  with  its 

provisions  has  not  been  exactly  literal. 

"We  are  of  opinion  that  the  record  does  not  show  with  sufficient  cer- 
tainty that  all  the  members  present  at  roll~eall,  at  tlie  opening  of  the 
meeting  in  question,  voted  for  the  resolutions;  ami  if  it  does  not  show 
that  all  did,  it  does  not  show  that  any  particular  one  of  them  did. 
AVhat  it  does  show  is,  that  at  roll-call  when  the  meeting  was  opened 
certain  members  named  were  present,  and  that  afterwards,  before  the 
,  meeting  adjourned,  certain  resolutions  were  adopted  unanimously  on 
1  vvv-'^'^'^all.  Now  if  it  were  a  legal  presumption  that  all  the  members  who 
^-  s  •  were  present  at  the  call  to  order  of  such  a  meeting  remained  until  its 
adjournment,  and  that  no  others  came  in  and  took  their  seats  after- 
wards, and  if  it  were  also  a  presumption  that  every  member  voted  on 
each  resolution  on  roll-call,  the  argument  of  defendants  would  be  com- 
plete, and  we  could  say  with  legal  certainty  from  this  record  that  these 
resolutions  were  passed  with  the  affirmative  vote  of  each  of  the  mem- 
bers named  as  present  in  the  clerk's  minutes  of  the  meeting  in 
question. 

But  surely  there  are  no  such  presumptions  of  law,  and  if  there  were, 
they  would  be  contradictory  to  the  common  experience  of  similar  offi- 
cial bodies.     It  is  very  well  known  that  it  is  neither  observed  nor  ex- 
u-«o  i'>'^'       pected  that  when  a  legislative  body  of  any  grade  has  commenced  its 
./>-^j»  daily  session,  the  doors  will  be  closed  to  prevent  the  ingress  of  mem- 

.  bers  not  prompt  in  arrival,  or  the  egress  of  others  who  may  have  occa- 

'*""')/  sion  to  leave.  The  actual  attendance  on  such  a  body  will  frequently 
be  found  to  change  materially  from  hour  to  hour,  so  that  a  record  that 
a  vote  was  passed  unanimously  would  be  very  slight  evidence  that  any 
particular  member  present  at  the  roll-call  voted  for  it,  or  that  any 
member  not  then  present  did  not.  And  even  if  the  record  could  be 
held  to  afford  a  presumption  on  that  subject,  its  character  must  be  so 
t^jint,  doubtful,  and  unreliable  as  to  subserve  no  valuable  purpose. 

Cx^  \l  t     ^    "^      r,    ^^,a.,.--^g,->-:>T-  ^-^      I    ^     ^   "t^frL  .  S   S    "^       /(  w  k  I  l-O  . 


STECKERT    V.  EAST    SAGINAW.  191 

IMoreover,  the  members  actually  present  are  usually  allowed  to  vote  or 
not  to  vote  at  their  option,  except  in  cases  of  close  votes,  or  where  an 
appeal  is  to  be  made  to  the  people ;  and  if  the  vote  of  a  quorum  is  in 
favor  of  a  resolution  and  no  vote  is  cast  against  it,  the  record  may 
still  be  that  it  was  "adopted  unanimously  on  call,"  though  some  of  the 
members  present  abstained  from  voting. 

"What  is  designed  by  this  statute  is,  to  fix  upon  each  member  who 
takes  part  in  the  proceedings  on  these  resolutions,  the  precise  share  of 
responsibility  which  he  ought  to  bear,  and  that  by  such  an  unequivocal 
record  that  he  shall  never  be  able  to  deny  either  his  participation  or 
the  character  of  his  vote.  But  manifestly  we  cannot  determine  in  the 
present  case  with  any  certaintv  that  any  one  of  the  aldermen  named 
—  Aldergiai3_Biicldi£Uit,  for  example  —  actually  voted  for  the  resolu- 
tions in  question.  We  know  he  was  present  when  the  council  con- 
vened,  but  we  have  no  record  which  points  specifically  to  his  individual 
action  afterwards.  Suppose  he  were  to  contest  the  tax  as  illegal,  and 
flTe  Clty^a-ulhorities  were  to  insist  upon  an  equitable  estoppel  arising 
upon  his  vote  in  its  favor,  and  he  should  deny  such  vote,  we  should 
look  in  vain  in  this  record  for  anything  absolutely  inconsistent  with 
such  denial.  Suppose  his  constituents,  dissatisfied  with  this  vote, 
undertake  to  call  him  to  account  for  his  participation,  and  he  were  to 
say  to  them,  "  I  was  not  present  when  these  resolutions  were  adopted  ; 
I  was  indeed  present  when  the  council  convened,  but  was  called  away 
soon  after  on  private  business  ;  "  this  record  plainly  could  not  be  relied 
upon  to  contradict  his  assertion.  The  persons  arraigning  him  would 
be  obliged,  in  order  to  fix  his  responsibility,  to  resort  to  the  parol  evi- 
dence of  his  associates  or  of  bvstanders.  But  the  legislature  under- 
stood  very  well  the  unsatisfactory  character  of  that  kind  of  evidence, 
and  they  did  not  Intend  that  the  power  to  call  an  alderman  to  account/ 
for  misconduct,  delinquencies,  or  errors  of  judgment  in  the  perform- i 
auce  of  this  official  duty,  should  be  left  to  depend  upon  it.     They  have/  ^""^'^ 

imperatively  required  that  there  should  be  record  evidence  of  a  char-."  ..->«a  c 

acter  that  should  not  be  open  to  contradiction,  or  subject  to  dispute ;  (i_^,..J^  vj-SS 
and  their  requirement  cannot  be  complied  with  according  to  its  terms, 
nor  satisfied  in  its  spirit  and  purpose,  without  entries  in  the  minutes 
showing  who  voted  on  each  resolution  embraced  by  the  section  quoted 
from  the  charter,  and  how  the  vote  of  each  was  cast.  In  other  words, 
the  ayes  and  noes  on  each  resolution  must  be  entered  at  large  on  the 
minutes,  so  that  the  presence  or  participation  of  any  member  shall  not 
be  left  to  conjecture  or  inference. 

It  was  frankly  conceded  on  the  argument  by  the  counsel  for  the  city, 
that  if  we  reached  this  conclusion,  the  assessments  in  question  must  ^ 
be  declared  void,  unless  the  complainants  could  be  held  estopped  from  (iI^_»-^*^'^~^ 
raising  the  objection  on  certain  equitable  grounds  which  were  insisted    0-4aW-*"- 
upon.     One  of  these  grounds  applies  only  to  three  of  the  comj)lainants,    i*^'  ^  - 
and  it  consists  in  the  fact  that  they  were  petitioners  to  the  common 
council  to  have  this  very  improvement  made. 


(K 


192  STECKERT   V.  EAST   SAGINAW. 

In  3Iotz  V.  Detroit,  18  Mich.  495,  we  held  that  where  parties  peti- 
tioned the  city  authorities  to  have  a  certain  improvement  made  which 
was  provided  for  by  the  city  charter  and  ordinances,  they  must  be 
understood  as  requesting  that  it  be  done  under  such  charter  and  ordi- 
nances, and  if  those  turned  out  to  be  invalid,  the  petitioners  were  not 
entitled  to  set  up  such  invalidity  as  a  basis  for  equitable  relief  against 
the  action  which  they  had  requested.  The  case  before  us,  however, 
is  of  a  different  character.  The  complainants  do  not  claim  that  the 
charter  under  which  the  assessment  was  made  is  void,  but  they  com- 
plain that  its  provisions  have  not  been  followed.  Three  of  the  com- 
plainants admit  asking  that  the  improvement  be  made  in  accordance 
with  the  law,  but  they  aver  that  the  attempt  has  been  made  to  con- 
struct it  in  disregard  of  the  law,  and  that  their  interests  are  injuriously 
affected  by  the  failure  of  the  council  to  follow  the  statutory  provisions. 
If  they  are  correct  in  their  facts,  we  do  not  see  how  they  can  be 
estopped  from  claiming  relief. 

The  second  grojand  of  estoppgl  applies  to  all  the  complainants,  and 

^^^j;dti/yvi^  it  consists  in  the  fact  that  they  were  all  residents  of  the  city  of  East 

*AJ       ■»     Saginaw,  and  presumptively  cognizant  of  the  proceedings  being  taken, 

■j^   ^^Tj  and  of  the  irregularities  which  existed,   and   yet  made  no  complaint 

^^^      "      until  the  woi'k  was  completed,  though  they 'knew  that  under  the  charter 

■■^  ■    the  contractor  who  did  the  work  could  only  be  paid  from  this  assess- 

jvvv^if-'*^"-*-'-'    j^Q^^      -jjjjg  ground  of  estoppel  appears  to  us  to  be  rather  far-reaching 

and  somewhat  dangerous.     To  hold  that  a  man  is  bound  at  his  peril  to 

take  notice  of  illegal  action  on  the  part  of  the  public  autliorities,  is 

carrying  the  doctrine  of  constructive  notice  very  much  farther  than  the" 

authorities  will  warrant.     TVe  think,  on  the  other  hand,  that  the  citizen 

has  a  right  to  assume  that  the  law  is  being  obeyed,  instead  of  violated, 


n.>f\^ 


f  '   by  the  public  authorities,  and  that,  at  least  in  the  absence  of  any  evi- 

■  ^'"''^^     dence  of  previous  knowledge  on  his  part  of  their  unlawful  action,  he 

'    *  '  is  in  time  with  his  protest  when  they  proceed  to  deprive  him  of  his 

rights  under  such  proceedings.     We  do  not  find,  therefore,  that  any 

principle  of  estoppel  will  preclude  the  complainants  from  the  relief 

prayed. 

As  the  views  already  expressed  dispose  of  the  case,  we  might,  per- 
haps, with  propriety  abstain  from  going  farther,  luit  there  are  some 
other  questions  presented  by  the  record  which  are  liable  to  arise  again, 
and  therefore  ought,  in  justice  to  the  parties,  to  be  disposed  of  now. 
\^.^Ais-^  One  ground  of  invalidity  assigned  by  the  complainants  is,  that  two 

^^  of  the  aldermen  who  formed  a  part  of  the  quorum  of  the  common  coun- 

rv  Wv  J'  '       cil  when  important  action  was  taken,  and  without  whose  presence  and 
^a^*A  *         votes  there  would  have  been  no  quorum,  were  petitioners  for  the  im- 
''***\>r^       provement,  and  owners  of  property  liable  to  assessment  therefor.     The 
y*'^^^,$'>'^^       votes  of  these  aldermen,  it  is  claimed,  were  void,  and  consequently  the 
action  of  the  council,  to  which  their  votes  were  essential,  was  void  also. 
We  think  this  objection  without  force.     The  action  in  question  was 
legislative  in  character,  and  the  interest  these  aldermen  had  in  it  was 


STECKERT   V.  EAST   SAGINAW.  193 

of  precisely  the  same  nature  with  that  which  every  legislator  has  in  a 
bill  he  votes  for,  which  is  to  subject  his  property,  in  common  with  that 
of  his  fellow  citizens,  to  taxation.  They  were  laying  down  rules,  which 
iu^ their  o]:ieiatiaa_would-affect-iilili.e^n(l  imuartiallv  their  own  interest 
aiidthat  pf  all  .othera_w.hQ&e--Pi"operty  woiild  beL-taxed.  Such  an  inter- 
est is  calculated  to  make  a  man  careful  and  solicitous  for  the  public 
interest,  with  which  his  own  is  inseparably  connected,  instead  of  inclin- 
ing him  to  vote  recklessly  or  corruptly  when  burdens  are  to  follow 
which  he  must  share.  None  of  the  cases  cited  on  the  argument  in  this 
connection  have  any  bearing.  Those  only  decide  that  a  man  is  not  to 
be  permitted  to  occupy  inconsistent  positions  when  his  own  interest  is 
directl}'  involved  ;  but  in  no  question  here  voted  upon  could  these 
aldermen  have  discriminated  between  their  personal  interest  and  that 
of  the  other  tax-payers,  except  in  fixing  the  taxing  district ;  and  as  on  \\e\j  (' 
that  question  if  they  voted  at  all  it  was  against  their  apparent  interest,  _^/t_j[^ 
and  in  favor  of  making  the  district  which  included  their  property  the 
smallest  possible,  it  is  obvious  that  they  did  not  by  their  vote  place 
themselves  in  a  position  antagonistic  to  other  tax-payers.  If  the 
common  council  acted  as  commissioners  jjfap^pojtionmeut  in  making /^^'l 
the  assessment  upon  the  property  that  was  to  bear  the  burden,  other 
considerations  might  be  involved ;  but  this  charter  designates  a  differ- 
ent tribunal  for  that  purpose  and  prescribes  g'-eat  caution  to  insure 
impartiality.  On  the  confirmation  of  the  commissioners'  report  ques- 
tions might  have  arisen  in  which  the  interest  of  these  aldermen  would 
have  been  direct  and  special ;   but  no  such  appear  by  this  record.  . 

It  is  also  objected  that  the  resolution  of  the  common  council  declar-  CS-^-o^  ^ 
ing  the  improvement  contemplated  to  be  necessary,  is  required  by  the 
charter  (Laws  of  1859,  p.  997)  to  describe  the  improvement,  while  in 
the  one  adopted  no  sutHcient  description  appears. 

The  contemplated  improvement  is  only  described  as  the  paving  of 
the    street   with  the  Nicholson  pavement  between  specified  termini. 
But  we   think   this   a   sufficient   compliance    with   the  charter.     The 
Nicholson  pavement  is  a  process  well  known  and  understood ;  and  *^"^ 
nothing  but  a  very  general  description  can  be  required  or  be  important  ^^ 

in  this  resolution.     We  also  think  that  the  removal  of  earth  for  the  „^  „ 

paving  and  the  settmg  of  curb-stones,  concerning  which  some  question  a..JLts- 

is  made  by  the  bill,  may  properly  be  treated  as  incidental  to  this  pav- 
ing, and  not  as  separate  improvements  requiring  to  be  described  and 
ordered  specifically  as  such. 

Two  other  objections  are  not  so  easy  of  disposition.  One  is  that  the 
resolution  of  the  council,  appointing  commissioners  to  make  an  assess- 
ment of  the  expense  of  the  improvement  upon  the  property  benefited, 
laid  down  a  rule  for  their  action  which  made  it  imperative  on  the  com- 
missioners to  assess  upon  each  lot  the  expense  of  paving  in  front  of  it, 
and  allow  them  no  discretion  to  adopt  any  different  basis  of  assess- 
ment if  they  regarded  any  other  more  equitable. 

The  resolution  in  question  is  of  very  uncertain  construction,  and  we 


194  STECKEET    V.  EAST    SAGINAW. 

are  not  entirely  satisfied  that  complainants  are  correct  in  the  view 
U  they  take  of  it.  But  it  does  not  become  necessary  to  decide  this  point, 
as  in  any  event  the  decision  cannot  depend  upon  it.  It  is  enough  to 
say  that,  under  the  charter,  the  council  have  no  power  to  give  direc- 
tions which  shall  govern  the  commissioners  in  making  their  assessment. 
The  commissioners  are  "to  make  an  assessment  upon  all  the  owners 
or  occupants  of  lands  and  houses  within  the  portion  or  part  of  the  city 
so  designated  [by  which  is  meant,  within  the  taxing  district  previously 
designated  by  the  common  council],  of  the  amount  of  expense  in  pro- 
portion as  nearly  as  may  be  to  the  advantage  which  each  shall  be 
deemed  to  acquire  by  making  of  such  improvements"  (Laws  of  1859, 
p.  1011) ;  and  it  is  their  judgment  and  not  that  of  the  common  council 
which  is  to  determine  whether  the  adjoining  lots  are  benefited  in  pro- 
portion to  their  respective  street  fronts,  or  whether,  on  the  other  hand, 
the  assessment  ought  not  to  be  apportioned  on  some  other  basis  than 
that  of  frontage. 

The  second  objection  just  referred  to  is,  that  the  commissioners,  in 
their  report  of  the  assessment  to  the  common  council,  did  not  report 
the  valuation  of  the  respective  lots  assessed.     This  is  expressly  re- 
quired by  the  charter  (Laws  1861,  p.  50),  but  the  defendants  jnsist 
^^  that  the  provision  on  this  subject  is  merely  directory,  since  it  can  sub- 

serve no  valuable  purpose  when  the  assessments  are  not  made  on  a 
basis  of  valuation,  and  therefore  the  tax-payers  have  no  interest  in  its 
being  complied  with. 

"We  think,  however,  that  the  tax-payers  ma}'  have  an  interest  in  its 
"   being  complied  with.     The  commissioners  are  not  precluded  from  mak- 
ing their  assessment  with  some  reference  to  valuation ;  and  as  the  com- 
mon council  review  their  action,  and  hear  and  decide  complaints  of 
inequality  and  injustice,  the  respective  valuations  of  lots  constitute 
important  information  to  be  possessed  by  them  when  proceeding  to 
perform  this  duty.     It  is  easj-  to  see,  where  an  assessment  is  made 
\  with  reference  mainly  to  frontage,  that  it  might  sometimes  be  exceed- 
"^^  ^'^    ingly  equitable  to  take  valuation  somewhat  into  account  also,  at  least 
in  exceptional  cases  ;  and  we  cannot  say,  therefore,  that  the  require- 
ment that  the  valuation  shall  be  returned  is  not  mandatory.     We  think 
all  lc2,'i-lative  provisions,  in  such  cases,  should  be  regarded  as  manda- 
,  ton',  where  they  seein  to  be  a(l(.ipte(l  for    the  ])rotection  of  the  tax- 
1  payer,   and  may  have  ah  important  influence  in  shielding   him   from 
llin 


i 


unequal  and  unjust  burdens. 


For  the  reasons  given  we  are  constrained  to  affirm,  with  costs,  the 
decree  of  the  court  below. 

Campbell,  Ch.  J.  and  Graves,  J.  concurred. 
Christiancy,  J.  did  not  sit  in  this  case.    • 


V 


"^^P^    V 


PORTLAND   V.  YICK.  195 


fi-.. 


%^  VANCOUVER  V.  WINTLER. 

1894.     8  Wash.  378. 


Stiles,  J.  The  respondent,  a  city  of  the  third  class,  seeks  in  this 
action  to  foreclose  certain  liens  for  street  assessments  against  parcels 
of  laud  abutting  on  the  street  and  owned  in  severalty  by  the  appellants. 
There  were  originally  three  separate  actions,  but  under  stipulation 
they  came  up  as  one  case. 

1.  The  first  point  made  by  appellants  is,  that  the  general  ordinance 
governing  street  assessments  was  void  because  not  passed  in  the 
manner  required  by  the  statute.  ^  The  law  governing  the  passage  of 
ordinances  is  contained  in  Gen,  Stat.,  §635,  the  first  clause  of  which  is  : 

"  No  ordinance,  and  no  resolution  granting  any  franchise  for  anyl 
purpose,  shall  be  passed  by  the  city  council  on  the  day  of  its  introduc-j 
lion,  nor  within  five  days  thereafter,  nor  at  any  other  than  a  regular! 
meeting,  nor  without  being  first  submitted  to  the  city  attorney." 

The  respondent  has  deemed  it  important  to  claim,  and  argue  at 
length,  that  the  provision  applies  only  to  ordinances  and  resolutions 
granting  franchises ;  but  we  think  the  position  is  untenable.  It  is  the 
only  provision  in  the  act,  of  which  it  was  a  part,  governing  the  matter 
of  the  passage  of  laws  by  the  council,  and  the  last  clause  of  the  section, 
which  relates  to  the  number  of  votes  required  to  pass  any  ordinance, 
resolution  or  order,  clearly  shows  an  intention  to  make  a  general  ap- 
plication of  the  whole  section  to  all  ordinances  of  every  kind  and  for 
every  purpose. 

But  the  complaint  of  the  appellants  is  that,  although  more  than  five 
days  elapsed  between  the  introduction  of  ordinance  242  and  its  pas- 
sage, the  original  ordinance  was  not  passed,  but  a  substitute  re-' 
ported  by  the  city  attorney.  It  is  a  well-known  practice  of  legisla-; 
tive  bodies  to  proceed  in  this  manner,  and  jo  long  as  the  substitute  is 
clearly  within  the  limits  of  the  subject  matter  of  the  origliial  j)ro£osi- 
tionwe  see  no  reason  why  municipal  councils  should  not  proceed  in  the 
same  way.  It  is  a  mere  method  of  amendment,  and  if  the  changes 
made  are  such  as  mighFhave  been  brought  about  by  ordinary  amend- 
ments the  statute  is  not  infringed.  This  was  the  case  with  the 
ordinauce  in  question,  and  it  was  therefore  properly  passed. 

■^  PORTLAND   V.    YICK. 

1904.     44  Or.  439. 

T7oLVERTON,  J.  The  defendant  was  convicted  in  the  Municipal 
Court  of  the  City  of  Portland  of  the  violation  of  ordinance  No.  11,336, 


H 


1  Only  so  much  of  the  opinion  as  discusses  this  point  is  given. — Ed. 


^  eK^.^r•U^»^ 


196  PORTLAND   V.  YICK. 

and  appealed  to  the  circuit  court,  wherein  he  was  again  convicted,  and 
now  appeals  to  this  court.     He  is  charged  with  the  violation  of  section 
2  of  the  ordinance,  which  provides  : 
.     OjOliiCiJ*    "  ^^  person  or  persons  shall  within  the  corporate  limits  of  the  City 
'^^  of  Portland  set  up  or  keep,  either  as  owner,  proprietor,  keeper,  man- 

ager, or  employe,  with  or  without  hire,  lessee  or  otherwise,  any  house, 
shop  or  place  for  the  purpose  of  selling  any  lottery  ticket,  certificate, 
paper  or  instrument,  purporting  or  representing,  or  understood  to  be 
or  to  represent,  any  ticket,  chance,  share  or  interest  in  or  depending 
upon  the  event  of  any  lottery." 

Section  6  provides  for  the  punishment  of  any  violation  of  the  ordi- 
nance by  fine  or  imprisonment,  or  both.  When  the  city  offered  evi- 
dence at  the  trial  in  the  circuit  court  it  was  met  with  the  objection  by 
the  defendant  that  the  ordinance  had  not  been  adopted  in  the  manner 
provided  by  charter  and  the  rules  governing  the  common  council,  and 
was  therefore  void  and  inoperative.  None. of  the. records  _Qf,...the  com- 
mon  council  relative  to  the  adoption  of  the  ordinance  were  introduced 
ih^evidence,  but  the  court  was  asked  to  take  judicial  knowledge  thereof, 
and  thereby  determine  the  validity  of  its  adoption.  Under  section  27 
of  the  city  charter  of  1898  (Laws  1898,  pp.  101,  108),  the  common 
council  was  authorized  to  adopt  rules  for  the  government  of  its  mem- 
bers and  its  proceedings.  It  was  required,  however,  to  keep  a  journal 
of  its  proceedings,  and  upon  the  call  of  any  two  of  its  members  to 
cause  the  yeas  and  nays  to  be  taken  and  entered  in  the  journal  upon 
any  question  before  it.  In  pursuance  of  this  charter  regulation,  the 
following  among  other  rules  were  adopted,  viz  : 

"  Rule  2&.  No  standing  rule  as  provided  by  this  ordinance  shall  be 
rescinded  or  suspended,  except  by  vote  of  two-thirds  of  all  the  mem- 
bers present,  and  the  ayes  and  nays  shall  be  recorded  on  any  motion 
to  suspend  a  rule. 

"Rule  27.  Ever}'  ordinance  shall  receive  three  readings  previous  to 
its  being  passed,  but  shall  not  be  read  more  than  twice  at  any  one 


9-> 


I  ^^^^^'^'V*"^*" 


meeting. 


The  journal  shows  that  the  ordinance  was  read  the  first  time  and 


dCi  second  time  by  title,  and,  on  motion  of  Councilman  Harris,  duly  sec- 

onded and  carried,  Rule  27  was  suspended,  the  ordinance  read  a  third 
time  by  title,  placed  upon  its  final  passage,  and  passed  by  11  yeas, 
giving  the  names  of  the  councilmen  voting  yes.  The  ordinance  has 
this  attestation  at  the  bottom  : 

"Passed  the  Council,  March  21,  1900. 

A.  N.  Gambell,  Auditor. 
"Approved,  March  22,  1900. 

W.  A.  Storey,  Mayor." 

On  the  back  there  are  attached  two  slips,  each  containing  the  names 

of  the  ^ouncilmen,  with  tlie  words,   "Yeas,"   "Nays,"  at  the  top  in 

separate  columns.     One  of  them    bears    at  the    top    the    notation    in 

pencil,  "  Suspension  Rule  27,"  and  opposite  each  name  in  the  column 

n-^  -i^*-^^ "         ■  <^  -^  <>-     A     *--^ ' 


PORTLAND   V.   YICK.  197 

headed  "  Yeas  "  a  perpendicular  pencil  mark.  The  other  bears  at  the 
top  the  word  "  Passage,"  with  a  like  mark  opposite  each  name  in  the 
column  headed  "  Yeas,"  thus  indicating  that  liule  27  was  suspended 
by  a  unanimous  vote,  and  the  ordinance  passed  by  a  like  vote,  the 
latter  showing  the  vote  to  be  the  same  as  recorded  in  the  journal. 

1.  Preliminarily,  it  is  urged  that  the  courts  will  not  take  judicial 
knowledge  of  the  acts  of  the  common  council  leading  to  the  adoption 
of  an  ordinance,  but  only  of  the  text  or  provisions  of  the  ordinance. 
It  will  be  noted  that  the  charter  regulations  relating  to  the  keeping  of 
a  journal  by  the  common  council  are  almost  identical  with  the  require- 
ments of  the  state  constitution  for  the  government  of  each  house  of 
the  legislative  assembly.  This  court  said  in  State  v.  lingers,  22  Or. 
348,  364  (30  Pac.  74),  Mr.  Justice  Bean  announcing  the  opinion : 
"  In  Currie  v.   Southern  Pac.   Co.,  21  Or.   566  (28  Pac.  884),  we  held  . 

that  the  court  will  take  judicial  knowledge  of  the  journals  of  the  legis- 
lature for  the  purpose  of  impeaching  the  validity  of  the  enrolled  act  on  ^ 
file  with  the  Secretary  of  State  ;  and  when  from  such  journals  it  affirm-  V'^~ 
atively  appears  that  the  bill  as  filed  in  the  Secretary  of  State's  office 
did  not  in  fact  pass  the  legislature,  the  courts  will  refuse  to  recognize 
it  as  a  valid  law ;  but  everj-  reasonable  presumption  is  to  be  made  in 
favor  of  the  legislative  proceedings ;  and  when  the  constitution  does 
not  require  certain  proceedings  to  be  entered  in  the  journal,  the 
absence  of  such  a  record  will  not  invalidate  a  law  It  will  not  be  pre- 
sumed, from  the  mere  silence  of  the  journal,  that  either  house  has  ex- 
ceeded its  authority  or  disregarded  constitutional  requirements  in  the 
passage  of  legislative  acts."  The  bill  which  was  the  subject  of  con- 
troversy in  that  case  passed  the  house  and  was  amended  in  the  senate. 
When  returned  to  the  house  that  body  concurred  in  the  amendments. 
This  was  shown  by  the  journal,  but  it  did  not  show  that  the  bill  as 
amended  was  read  section  by  section  on  the  final  passage,  nor  that  the 
vote  was  taken  by  yeas  and  nays,  as  required  by  article  IV,  §  19,  of 
the  constitution.  Conceding  that  the  yeas  and  nays  should  have  been 
thus  taken  in  that  instance,  the  court  further  say :  ' '  We  must 
assume,  in  the  absence  of  a  showing  to  the  contrary,  that  the  con- 
stitutional requirements  were  observed,  and  hold  that  the  act  under 
consideration  was  constitutionally  passed."  In  the  Currie  case,  alluded 
to  in  the  opinion  of  the  court  in  State  v.  /Rogers,  22  Or.  348  (30  Pac. 
74),  the  bill  went  to  the  senate  after  passing  the  house,  and  the  jour- 
nal shows  that  it  was  put  upon  its  final  passage,  when  it  received  13 
yeas  and  11  nays.  There  were  five  absent  and  one  senator  was  ex- 
cused; "so,"  continues  the  record,  "the  bill  failed  to  pass."  There 
was  an  affirmative  showing  that  the  bill  failed  to  pass,  and  the  court 
took  judicial  cognizance  of  the  record  in  the  journal,  and  declared 
the  act  inoperative. 

The  same  principle  was  announced  in  3fcKinnon  v.  Cotner,  30  Or. 
588,  591  (49  Pac.  956).  The  bill  in  that  instance  passed  the  house, 
went  to  the  senate,  and  was  amended  by  the  addition  of  section  8, 


V 


198  POKTLAND   V.   YICK. 

being  an  emergency  clause,  and  passed,  when  it  was  returned  to  the 
house  and  the  amendment  concurred  in.  This  is  all  shown  by  the 
journals  of  the  two  houses,  but  no  other  reference  is  made  therein  to 
the  bill,  except  to  show  that  it  was  duly  signed  by  the  presiding 
officers.  The  enrolled  act  so  signed  was  approved  by  the  Governor, 
filed  in  the  office  of  the  Secretary  of  State,  and  published  among  the 
general  laws,  but  it  did  not  contain  section  8,  and  the  act  was  held 
valid  because  it  nowhere  appeared  in  the  journals  that  the  act  did  not 
pass  in  the  form  actually  signed  by  the  presiding  officers  and  as  found 
on  file  in  the  office  of  the  Secretary  of  State.  In  all  these  cases,  if  we 
are  rightly  informed,  the  court  took  judicial  knowledge  of  the  state  of 
the  record  as  shown  by  the  journals  in  the  two  houses,  without  the 
necessity  of  their  introduction  in  evidence.  Indeed,  the  general  rule 
seems  to  be  that  courts  will  take  judicial  notice  of  the  contents  of  the 
journals  and  other  records  of  legislative  bodies,  required  to  be  kept  by 
'tlie  fundamental  law,  which  may  in  any  manner  affect  the  validity  of 
the  meaning  and  proper  construction  of  an  act.  But  further  than  this 
"they  will  not  go,  and  they  will  not  take  judicial  cognizance  of  any  fact 
that  is  without  legal  potency  to  affect  the  validity  of  the  act  or  to  ex- 
plain its  meaning  or  construction:  17  Am.  &  Eng.  Enc.  Law  (2  ed.), 
928,  929;  Division  of  Howard  County,  15  Kan.  194;  People  \.  Ma- 
haney,  13  Mich.  481 ;  Green  v.  Weller,  32  Miss.  630;  Somers  v.  State, 
3  S.  D.  321  (58  N.  W.  804) ;  Bitcliie  v.  Richards,  14  Utah,  345  (47 
Pac.  670)  ;  McDonald  v.  State,  80  Wis.  407  (50  N.  W.  185).  Under 
the  doctrine  of  this  court  it  will  not  look  behind  the  enrolled  bill  having: 
the  signatures  of  the  presiding  officers  of  the  two  houses  and  filed  in 
the  office  of  the  Secretary  of  State,  except  to  determine  whether  it  ap- 
pears affirmatively  from  the  records  of  those  bodies  that  the  man- 
datory provisions  of  the  constitution  have  not  been  observed  in  the 
enactment;  and,  unless  it  does  so  appear,  the  law  will  not  be  declared 
invalid.  Mere  silence  of  the  journals  as  to  such  a  requirement  will 
not  suffice  to  overthrow  it,  unless  it  might  be  in  a  case  where  the  con- 
stitution requires  an  entr}^  in  the  journal,  as  the  presumption  will  then 
obtain  that  the  legislature  proceeded  i-egularly  and  properlj'.  Such 
being  the  ascertained  rule  and  doctrine,  the  further  solution  of  the 
present  problem  is  not  difficult. 

2.    The_niunicipal  courts  will  take,  judicial  notice  of  the  ordinances 

-^L^-'  ""     of  tjie  municipality  and  of  such  journals  and  records  of  the  law-making 
'V/\  body  as  affect  their  validity,  meaning,  and  construction  in  liko  manner 

Ji  vK^"^  ^°^  foflike  purposes  as  the  courts  of  the  State  take  judicial  cogni- 
zance of  the  public  statutes  of  the  State,  and,  in  the  event  of  an  appejil 
to  the  circuit  court,  although  by  the  rules  of  law  the  case  is  to  be  tried 
de  noco,  the  circuit  court  will  take  like  judicial  notice  of  such  ordi- 
nances as  the  municipal  courts.  We  are  not  sajnng  that  it  will  not  do 
so  upon  any  other  principle,  but  it  will  upon  this,  which  suffices  for 
the  determination  of  the  present  controversy :  City  of  Solomon  v. 
Hughes,   24  Kan.   211;  Doionincj  v.    City  of  Milton  vale,  36  Kan.  740 


PORTLAND    V.   YICK. 


199 


(14  Pac.  281)  ;  State^for  rtse  v.   Lf.ihP. 

Orte      CitjJ    v.     Qr^nflfolln^i^  ^    A'J     Tr.-n,-n^ 


^ 


/'.  1  ITowa,  407  :   Town  of  La- {  1^1^^ 

ItTJlXn'own  of  MounidCsville   v.      Y^'^ 


elton,  85  W.  Va.  217  (13  S.  E.  373). 

3.   The  charter  as  to  the  common  nnnnoil  atnnrls  in  thft  same  rela-\  \v^,,^^  Oy^ 
tioa  that  the  constitution  flops  to  t|ip  t.wr>  hnnet^g  pf  ti^^   Ifigjf^lflt^^i''  ^^.r.^^  Jb. 
assembly^  and,  if  the  ordinauce  in  question  is  to  be   impeached    or 
overthrown,  it  must  appear  atiinnjj^j^ely  fi'om  tli*.'  journal  of  the  com- 
mon council  that  the  mandatory   provisions 


of  the   fuiidamSIainaV^    i^i>»<\f^ 
relative  to  the  passage  of  the  ordinauce  have  not_  been  obeerved.     The  '  ^^k 

courts  will  not  look  into  minor  records  that  the  council  may  require  to 
be  kept  to  determine  "whether  tlie  rules  which  it  has  adopted  for 
the  orderly  dispatch  of  the  business  before  it  have  been  complied  with, 
and  whenever  it  is  not  affirmatively  shown  by  the  journal  (mere  silence 
of  the  record  not  amounting  to  such  a  showing)  that  the  charter 
provisions  relative  to  the  adoption  of  the  ordinance  have  not  been  com- 
plied with,  the  ordinance  in  controversy  must  be  deemed  to  have 
been  regularly  adopted.  Now,  the  ordinance  under  consideration  ap- 
pears affirmatively  from  the  journal  to  have  received  a  majority  vote  o 
all  the  members  of  the  common  council.  This  was  sufficient  to  indi 
cate  its  adoption:  Laws  1898,  pp.  101,  109,  §  30. 

4.  The  record  as  to  the  suspension  of  the  rules  is  not  required  by  ^ 
the  charter  to  be  kept  in  the  journal,  and,  if  it  were  at  all  material  to 
the  present  controvers}^  the  record  of  the  yeas  and  nays  on  the  sus- 
pension of  the  rules  kept  by  the  common  council  upon  slips  attached 
to  the  ordinance  is  amply  sufficient  to  show  a  compliance  with  the 
rules.  It  was  the  method  employed  by  the  common  council  for  keep- 
ing the  record,  and,  being  by  it  deemed  sufficient  for  the  purpose,  the 
courts  will  not  intervene  to  hold  it  void. 

5.  It  is  next  contended  that  the  common  council  was  not  em- VC^J^- -»^ 
powered  to  adopt  the  ordinance.  The  delegated  power  is  "  to  prevent 
and  suppress  gaming  and  gambling_lK)uses,  or  places  where  any  game 
in  which  chance  predominates  is  played  for  anything  of  value."  This! 
is  unquestionably  broad  enough  to  authorize  the  common  council  to 
prevent  the  setting  up  or  keeping  of  any  house  or  place  for  the  purpose 
of  selling  lottery  tickets  or  certificates  depending  upon  the  event  of  a 
lottery,  which  is  essentially  the  purpose  of  section  2  of  the  ordinance 
in  question.  The  setting  up  or  keeping  of  such  a  house  is  in  itself  an 
overt  act,  and  constitutes  the  offense,  the  object  of  the  charter  being 
to  prevent  and  suppress  gambling  houses.  Lottery,  it  has  been  held, 
is  a  gaming  device  (Ex  parte  Kameta,  36  Or.  251,  60  Pac.  394,  78 
Am.  St.  Rep.  775),  and  the  keeping  of  a  house  for  the  purpose  of  sell- 
ing lotterj'  tickets  is  as  much  within  the  spirit  and  intendment  of  the 
charter  as  if  it  was  kept  for  any  other  kind  of  gambling. 

6.  Another  objection  urged  to  the  ordinance  is  that  the  acts  pro- 
hibited thereby  are  not  declared  to  be  crimes  or  misdemeanors,  or  even 
to  be  unlawful.  A  penaltj',  however,  is  prescribed  for  their  violation, 
and  this  is  all  that  is  necessary  to  notify  persons  of  the  unlawful 
character  of  the  offense. 


\^^ 


200  PEVEY   V.    AYLWARD. 

7.  The  next  and  last  objection  preferred  is  that  the  auditor  did  not 
attest  the  ordinance  as  "  Auditor  of  the  City  of  Portland,"  as  he  is 
styled  in  the  charter:  Laws  1898,  pp.  101,  119,  §  46.  Manifestly,  the 
answer  to  this  is  that  neither  the  signing  nor  the  attestation  of  the 
ordinance  by  the  auditor  is  essential  to  its  validity  under  the  charter. 
It  might  be,  and  no  doubt  is,  convenient,  and  perhaps  essential,  to 
identify  the  ordinance  in  its  transmission  to  the  mayor  and  return  to 
the  council  body  that  he  attest  it,  or  place  upon  it  his  file  mark ;  but 
we  are  not  aware  that  any  such  formality  is  required  in  order  to  com- 
plete its  perfect  enactment,  so  as  to  give  it  the  force  of  law. 

These  considerations  affirm  the  judgment  of  the  trial  court,  and  such 
will  be  the  order  of  this  court. 

Affirmed. 


PEVEY  V.  AYLWARD. 

1910.     205  Mass.  102. 

Kkowlton,  C.  J.  This  is  a  petition  for  a  writ  of  mandamus  to 
prevent  the  respondent  Aylward  from  acting  as  city  solicitor  for  the 
city  of  Cambridge,  and  to  compel  recognition  of  the  petitioner's 
alleged  right  to  that  office.  The  question  turns  upon  the  validity  of 
Mr.  Ay] ward's  election,  which  was  declared  by  the  common  council  in 
concurrence  with  the  board  of  aldermen  on  June  29,  1909.  It  is  not 
now  contended  that  the  election  was  invalid  because  it  was  not  held  in 
the  month  of  April,  according  to  the  requirement  of  the  St.  1891,  c. 
364,  §  20.  See  Butter  v.  Wliite,  204  Mass.  59  ;  Cheney  v.  Coughlin, 
201  Mass.  204. 

On  June  29,  1909,  this  respondent  was  legally  elected  by  the  board 
of  aldermen,  and  notice  of  his  election  was  sent  to  the  common 
council.  The  statutory  provision  is  as  follows:  "In  the  year  one 
thousand  nine  hundred  and  eight,  and  every  third  year  thereafter,  in 
the  month  of  April,  the  city  council,  by  concurrent  vote,  the  board  of 
aldermen  acting  first,  shall  elect  a  solicitor  for  the  city  of  Cambridge," 
etc.  St.  1891,  c.  364,  §20,  as  amended  by  St.  1907,  c.  491.  By  the 
M  jR.  L.  c.  26,  §7,  it  is  provided  that  "no  election  of  a  city  officer  by  a 
municipal  body  or  board  shall  be  valid  imless  made  by  a  viva  voce  vote, 
each  member  who  is  present  answering  to  his  name  when  it  is  called 
by  the  clerk  or  other  proper  officer,  stating  the  name  of  the  person  for 
Whom  he  votes,  or  that  he  declines  to  vote." 

The  first  objection  of  the  petitioner  to  the  election  is  that  it  was  in 
violation  of  §21  of  the  Joint  Rules  and  Orders  of  the  City  Council, 
which  provides  that  every  ordinance  and  every  order  requiring  coil-" 
current  action  shall,  after  passing  one  board,  remain  in  the  possession 
pf  the  clerk  of  that  board  for  thirty-six  hours.  This  is  to  give  an 
opportunity  for  a  motion  for  reconsideration,  according  to  the  later 
provision  of  the  same  section^  and  provisions  on  the  same  subject  in 


PEVEY   V.    AYLWARD.  -        201 

§18  of  the  Rules  of  the  Board  of  Aldermen,  and  §17  of  the  Rules  of 
the  Common  Council.  But  these  rules  are  not  applicable  to  the 
election  of  a  city  solicitor,  under  the  requirement  of  the  statute.     Such 


ScL,> 


an  election  jg  iiot  n.n  nrdinnnpp  or  order,  within  the  meaningof  the 
rule.  Section  21,  after  the  requirement  stated  above,  provides  that  if 
no  motion  for  reconsideration  is  entered,  the  ordinance  or  order  shall 
be  sent  to  the  clerk  of  the  other  board,  who  shall  cause  the  same  to  be 
printed  in  the  calendar,  etc.  In  this  case  there  was  no  ordinance  or 
order.  There  was  a  vote  upon  an  oral  motion,  in  the  board  of  aldcr- 
"men,  to  proceert  to  the  election  of  a  city  solicitor.  Then  an  election 
was  iTart  in'  tlie"  manner  prescribed  by  the  statute.  The  result  was 
recorded  and  notice  of  what  had  been  done  was  sent  to  the  common 
council.  The  proceeding  is  not  within  the  definitions  of  orders  and 
ordinances  in  §§1,  2  of  the  joint  rules,^  nor  is  it  within  the  meaning 
and  object  of  §21.     This  objection  of  the  petitioner  is  not  well  founded. 

The  next  question  arises  upon  proceedings  after  a  motion  to  adjourn 
in  the  common  council.     The  record  is  as  follows  : 

"At  this  time  Councilman  Beane  submitted  a  motion  '  That  the 
Common  Council  do  now  adjourn.' 

"  The  President  declared  this  motion  to  be  carried,  and  immediately  ,  Wvw^*- 
left  the  chair. 

"  The  vote  on  this  motion  was  doubted. 

"  Councilman  Nelligan  assumed  the  chair  at  once,  and  Councilman 
Murphy  submitted  a  motion  that  Councilman  Nelligan  be  chosen 
President  temporarily. 

"  This  motion  was  declared  to  be  carried. 

"  On  motion  of  Councilman  Trodden,  a  committee  consisting  of 
Councilman  Horan  and  Councilman  Murphy  was  appointed  to  wait  on 
the  President  and  request  him  to  resume  his  duties. 

"This  committee  reported  that  they  were  unable  to  find  the  President. 

"The  aforesaid  communication  from  the  Board  of  Aldermen  giving 
notice  of  the  election  of  James  F.  Aylward  as  City  Solicitor,  was  then 
read  by  the  President  pro  temj^ore. 

"Councilman  Horan  submitted  a  motion  that  the  Common  Council 
proceed  to  the  election  of  a  Citj'^  Solicitor. 

"This  motion  was  declared  to  be  carried. 

"The  roll  of  members  was  called  by  the  clerk  and  each  member 
present  announced  his  choice  for  City  Solicitor  as  follows : "  Then 
follows  the  record  of  the  vote  of  each  member  present,  showing  twelve 
votes  for   the  respondent  Aylward  and  two   for   the   petitioner,  and 

^  The  sections  referred  to  are  as  follows : 

"  Section  1.  All  by-laws  passed  by  the  city  council  shall  be  termed  ordinances ; 
and  the  enacting  style  shall  be,  '  Be  it  ordained  by  the  city  council  of  the  City  of 
Cambridge. ' 

"  Sect.  2.  In  all  votes,  by  which  either  or  both  branches  of  the  city  council  express 
anything  by  way  of  command,  the  form  of  expression  shall  be,  '  Ordered ' ;  and 
whenever  either  or  both  branches  express  opinions,  principles,  facts  or  purposes, 
the  form  shall  be  '  Resolved. ' " 


202  PEVEY    V.    AYLWAItD. 

showing  the  names  of  the  absent  members,  who  were  eight  in  numbei*. 
Mr.  Aj'lward  was  dcclarerl  elected  city  sohcitor,  in  concurrence  with 
the  board  of  aldermen,  and  notice  was  sent  to  that  board. 

The  petitioner  contends  that  the  common  council  was  adjourned, 
and  that  the  subsequent  proceedings  were  all  invalid.  We  must 
construe  the  record  as  meaning  that  the  vote  to  adjourn,  as  declared, 
was  doubted  without  delay.  Under  §2  of  the  Rules  and  Orders  of  the 
Common  Council,  i  it  is  the^duty  o^  the  president,  in  such  cases,  to 
resolve  the.doubt  at  once  by  requiring  '-the  members  voting  in  the 
affirmative  and  negative  to  rise  and  stand  until  they  are  counted." 
That  would  be  his  duty  if  there  were  no  such  rule.  This  president  did 
not  relieve  himself  of  the  duty  by  "  immediately  "  leaving  the  chair.  As 
he  ceased  to  act  as  presiding  officer,  the  members  were  obliged  to 
choose  some  one  else  to  act  in  his  stead,  and  their  choice  of  a  president 
pro  fmpoFe  was  properly  made.  HoU'v.  SomerviUe,  127  Mass.  408, 
411.  Bennett  v.  Xeio  Bedford,  110  Mass.  433,  438.  It  is  objected 
that  this  was  illegal  because  §1  of  the  rules  declares  that  "in  the 
absence  of  the  president,  the  clerk,  and  in  his  absence,  the  senior 
member  present,  shall  call  the  council  to  order,  and  preside  until  a 
president  pro  tempore  is  chosen  by  ballot."  But  this  rule  applies  to 
the  organization  of  a  meeting  in  the  absence  of  the  president.  It  has 
no  application  to  a  case  where  the  meeting  is  organized  and  doing 
business,  and  the  president  abandons  his  post,  and  leaves  the  meeting 
without  a  presiding  officer.  In  such  a  case  the  meeting  properly  may 
choose  a  presiding  officer  in  any  reasonable  way.  The  clerk  may 
preside  until  the  temporary  president  is  chosen,  or  anj'  member 
may  do  so.  As  soon  as  the  temporary  president  was  chosen,  it  was 
the  duty  of  the  meeting  to  resolve  tlie  doubt  on  the  motion  to  adjourn, 
in  accordance  with  the  rule.  In  their  method  of  doing  this  they  did 
not  follow  the  rule.  But  apparently  by  common  consent,  and  without 
objection  by  anybody,  they  did  resolve  the  doubt  by  proceeding  to  do 
business.  Tliis  action  was  inconsistent  with  any  other  conclusion  upon 
the  motion  to  adjourn  than  that  it  was  not  carried.  The  president's 
declaration  of  adjournment  had  no  effect  to  bring  the  meeting  to 
an  end  when  the  vote  declared  was  promptly  doubted.  The  meet- 
ing continued  without  being  adjourned,  and  took  action  which  was 
equivalent  to  a  decision  that  the  motion  to  adjourn  was  not  carried. 
Bakery.  Cushman,  127  Mass.  105,  106.  Williams  v.  Gloucester,  148 
Mass.  256,  260.      Wood  v.  Milton,   197  Mass.  531.     While  this  was 

1  The  sections  referred  to  are  as  follows  : 

"Section  1.  The  president  shall  call  the  council  to  order  at  the  hour  to  which  it 
has  adjourned,  and  a  quorum  being  present,  shall  proceed  to  tlie  regular  order  of 
business.  In  the  absence  of  the  president,  the  clerk,  and  in  his  absence,  the  senior 
member  present,  shall  call  the  council  to  order,  and  preside  until  the  president  pro 
tempore  is  cho-^en  by  ballot.     A  plurality  of  votes  sliall  elect. 

"  Sect.  2.  The  president  shall  declare  all  votes.  If  any  member  doubts  the  vote, 
the  president,  without  further  debate  upon  the  question,  shall  require  the  members 
voting  in  the  affirmative  and  negative  to  rise  and  stand  until  they  are  counted." 


ELLIOTT    V.    CHICAGO.  203 

irregular,  its  meaning  was  plain,  and  seemingly,  it  was  by  the 
unanimous  consent  of  all  the  members  present.  It  was,  therefore,  as 
effectual  as  if  it  had  been  re<>ular.  See  Attorney  General  v.  liemick, 
73  N.  H.  25  ;  Hicks  v.  Long  Branch,  40  Vroom,  300,  303;  Putnam  v. 
Langley,  133  Mass.  204 ;  Wood  v.  Cutter,  138  Mass.  149.  Wheelock 
V.  Loioell,  196  Mass.  220,  230.  Sinclair  v.  Mayor  of  Fall  Ricer,  198 
Mass.  248,  256. 

The  attempt  to  adjourn  having  thus  been  disposed  of,  the  election 
was  valid.  It  was  agreed  to,  not  only  by  a  majorit}^  of  the  members 
present,  "but  by  a  majority  of  the  members  of  the  whole  common 
council.  Even  if  there  had  been  irregularities  in  the  election  itself, 
unless  the}'^  were  such  as  to  defeat  or  render  doubtful  the  expression 
of  the  will  of  the  voters,  the  court  would  desire  to  give  effect  to  the 
action  of  the  majorit3\  Attorney  General  v.  Campbell,  191  Mass. 
497,  502.  Blackmer  v.  Hildreth,  181  Mass.  29,  32.  Commonioealth 
V.  Smith,  132  Mass.  289,  296.     People  v.  Wood,  148  N.  Y.  142. 

As  the  respondent  Aylward  was  legally  elected,  the  right  of 
the  petitioner,  who  was  holding  over  after  the  expiration  of  his  term  of 
office  until  his  successor  should  be  chosen,  was  thereby  terminated. 

Q        —...^^  Petition  dismissed. 


h.  Administrative. 


<^^^   "O^^^!]^'     ELLIOTT   V.   CHICAGO. 


iJ^ ,  9^\^     ^  1868,    48  ///.  293. 

''^^x-^C^;^'  Breese,   J.     This  was  an  application  by  A.  H.  Heald,  city  collector 
of  the  city  of  Chicago,  to  the  Superior  Court,  for  judgment  against 
certain  lots  in  that  city,  assessed  for  certain  improvements  on  Michigan 
avenue. 
>-'*^  The  appellant,  Elliott,  appeared,  and  made  objections  to  the  entry 

A^  ,  of  any  judgment  against  the  property  assessed  in  his  name,  on  the 
^^"^ .  grounds  —  1st,  That  no  notice,  as  required  by  law,  was  given  of 
the  application  for  judgment.  2d.  The  commissioners  willfully  and 
fraudulently  failed  and  refused  to  assess  real  estate,  knowing  the  same 
to  be  specially  benefited  by  the  proposed  improvement.  3d.  Because 
all  the  material  retjuirements  of  the  city  charter,  as  to  the  passing  of 
the  ordinance  for  (the  improvement)  and  as  to  the  acts  of  the  com- 
missioners of  the  Board  of  Public  Works,  and  of  the  Common  Council 
and  officers  of  the  city,  have  not  been  complied  with.  4th.  No  notice, 
as  required  by  law,  was  given  of  the  meeting  of  the  commissioners  for 
the  purpose  of  making  the  assessment;  and  5th,  no  notice,  as  required 
by  law,  was  given  of  the  filing  of  the  assessment  roll  with  the  city 
clerk,  or  the  commissioners'  intended  confirmation  thereof. 

These   objections   were   overruled,    and   judgment   entered  for  the 
amount  assessed,  with  one  per  cent  per  month  since  September  6, 


204  TAPPAN   V.    SCHOOL   DISTEICT   NO.    1. 

1867,  and  costs,  and  an  order  entered  that  sufficient  of  the  property 
assessed  be  sold  to  satisfy  the  judgment. 

To  reverse  this  judgment,  Elliot  appeals  to  this  court. 

In  support  of  the  second  objection,  appellant  called  several  witnesses, 
who  all  concurred  in  testifying  that  other  property  on  Michigan  avenue, 
not  assessed,  was  benefited  by  this  proposed  improvement,  as  thereby 
the  value  of  the  property  was  enhanced. 

Had  these  witnesses  occupied  the  position  of  the  Board  of  Public 
"Works,  thej',  doubtless,  acting  on  their  own  judgments  and  official 
oaths,  might  have  assessed  the  property  not  included  in  the  assess- 
ment by  the  commissioners.  The  commissioners  were  acting  under 
oath,  and  were  to  be  controlled  by  the  judgment  of  none  others  but 
their  own,  and  on  their  oaths  have  made  their  return  that  the  lots 
assessed  were  specially  benefited  by  the  proposed  improvement,  and 
their  judgment  must  stand,  unless  impeached  for  fraud,  not  the  slight- 
est proof  of  which  is  exhibited  in  this  case.  As  matter  of  necessity, 
their  judgments  must  control,  else  there  could  be  no  such  improve- 
ments. If  a  board  of  public  works,  selected,  as  must  be  supposed, 
for  their  good  judgment,  integrity  and  general  capacity,  should, 
under  their  official  oaths,  declare  by  their  report  that  certain  property 
is  specially  benefited  by  a  proposed  improvement,  can  it  be  that  their 
judgment  shall  be  overthrown  by  the  testimony  of  others  no  more  in- 
.  telligent  and  no  more  honest  than  they?  The  judgment  of  men  greatly 
'"^  differs  in  almost  every  case  demanding  its  exercise,  and  in  cases  like 
this,  it  must  be  shown  it  was  unfairly  or  fraudulently  exercised,,  to 
authorize  a  court  to  nullify  it.  Their  judgment  must  be  conclusive  in 
the  absence  of  all  fraud.     City  of  Chicago  v.  Burtice.^  24  111.  489. 

The  other  objections  have  no  foundation.  All  the  material  require- 
ments of  the  law  have  been  substantially  complied  with,  and  all  the 
proceedings,  from  their  inception  to  the  final  judgment,  have  been 
regular,   and  in  accordance  with  the  charter. 

Perceiving  no  error  in  the  record,  the  judgment  is  affirmed. 

Judgment  affirmed.^ 


TAPPAN  V.  SCHOOL  DISTRICT  No.  1. 
1880.    44  Mich.  500. 

Graves,  J.^  August  31,  1878,  the  defendant's  trustees  entered  into 
a  written  contract  with  Tappan  to  hire  him  to  teach  defendant's  school 
for  the  term  of  forty  weeks  beginning  on  the  first  day  of  the 
school  year,  September  2d,  at  S50  per  month  and  board  himself. 
The  school  was  organized  as  a  graded  one  in  1873  and  so  remained. 
He  began  teaching  under  the  contract  on  the  second  of  September  and 

^Part  of  the  opinion  is  omitted.— Ed. 


ALLEN    V.    WELLES.  205 

continued  two  days.  He  was  then  dismissed  by  defendant's  trustees, 
but  no  cause  was  expressed.  September  24,  1^79,  he  Ijrought  this 
action  for  damages.  The  circuit  judge  heard  the  case  upon  the  facts 
and  refused  to  allow  a  recovery. 

It  is  said  that  the  trustees  who  contracted  with  Tappan  were  not 
empowered  to  hire  for  any  time  beyond  the  current  school  3'ear  to  ex- 
pire on  the  arrival  of  the  annual  meeting,  September  2d,  and  that  the 
contract  so  made  on  the  31st  of  August  was  not  binding  on  the  dis- 
trict after  September  first. 

In  the  case  of  graded  schools  the  trustees  are  not  annually  renewed. 
The  Legislature  has  seen  fit  to  give  the  board  more  permanence.  One- 
third  only  or  two  out  of  six  go  out  yearly.  A  purpose  to  secure  an 
administration  for  these  branches  more  stable  and  efficient  in  the  in- 
terest of  education  than  is  very  common  under  the  general  law,  is 
plain  enough,  and  there  is  no  implication  of  a  design  that  the  power 
of  the  board  should  be  so  fettered  that  no  teaching  to  commence  on 
the  first  day  of  the  school  year  could  be  lawfully  contracted  for  until 
the  annual  meeting  on  that  day  should  be  closed.  On  the  contrary,  it 
may  be  fairly  argued  that  the  Legislature  contemplated  that  these 
schools  would  generally  open  on  the  beginning  of  the  school  year,  and 
tEat  the  teachers  would  have  to  be  contracted  with  in  season  therefor^ 
anci  that  some  time  would  be  necessary  to  enable  the  trustees  to  per- 
form with  due  care  the  important  duty  of  selecting  and  hiring.  It  is 
scarcely  necessary  to  enlarge  upon  the  question.  The  contract  ap- 
pears to  have  been  within  the  power  of  the  trustees,  and  the  record 
discloses  nothing  to  impeach  it.  Neither  the  trustees  nor  the  voters  at 
the  annual  meeting  had  power  to  impair  its  obligation.  "Whether  they 
resolved  or  not  that  none  but  female  teachers  should  be  employed  is 
not  important. 


_^       „      ,    i  PEOPLE   EX  REL.  ALLEN   v.    WELLES. 
y\\y^^,fy\  1895.     14  iV.  y.  .1/«c.  226. 


>5-^o:: 


5B0RNE,  J.  This  is  a  proceeding  by  cerdoxjjuU  to  review  the  action 
of  the  respondent,  as  commissioner  of  police  and  excise,  in  dismissing 
the  relator  from  the  police  force. 

By  the  charter  of  the  city  of  Brooklyn  (Chap.  583,  Laws  of  1888. 
tit.  11,  §  9)  the  commissioner  of  police  and  excise  was  authorized  "  to 
make  such  rules,  regulations  and  orders  for  the  government  of  the 
police  force  as  he  ma}^  deem  proper,"  and  he  was  also  authorized  (§  15), 
on  conviction  for  violation  of  rules,  etc.,  to  punish  by  dismissal  from 
the  force. 

It  appears  from  the  return  to  the  writ  that,  on  or  about  October  23, 
1893,  Hon.  Henry  I.  Hayden,  the  then  commissioner,  caused  to  be 


:^\' 


206  ALLEN   V.  WELLES. 

adopted,  issued  and  published  certain  rules  and  regulations  for  the 
government  of  the  police  force,  and  these  rules  have  never  been 
repealed. 

One  of  such  rules  (Rule  12,  §  5)  required  each  patrolman  to  remain 
on  his  post  ''until  the  time  assigned  for  the  expiration  of  his  tour  of 
duty,"  except  in  certain  specified  cases  not  relating  to  the  matters  in 
issue  here. 

Another  of  said  rules  (Rule  25,  §  5)  forbade  any  member  of  the 
force  becoming  intoxicated,  and  further  provided,  in  addition  to  being 
suspended  and  reported,  that,  in  case  "he  became  violent,  disorderly, 
or  unable  to  take  care  of  himself,  he  should  be  detained  as  a  prisoner 
and  taken  before  a  magistrate  at  the  next  sitting  of  the  court." 

On  December  18,  1893,  the  relator  was  appointed  a  patrolman  of 
the  police  force,  and  at  about  that  time  a  copy  of  the  said  rules  and 
regulations  was  furnished  him. 

On  or  about  February  1,  1894,  the  respondent  was  duly  appointed 
commissioner  of  police  and  excise,  in  place  of  Mr.  Hayden,  whose  term 
of  otBce  had  expired. 

On  January  24,  1895,  charges  were  preferred  by  the  captain  of  his 
precinct,  against  the  relator,  for  a  violation  of  both  of  the  above- 
mentioned  rules,  and  he  was  also  taken  before  Police  Justice  Haggarty 
on  a  charge  of  intoxication. 

The  relator  appeared  in  person  and  by  counsel  before  the  com- 
missioner in  answer  to  said  charges;  a  trial  was  had,  witnesses 
examined  on  both  sides,  and,  after  deliberation,  the  commissioner  ad- 
judged the  relator  to  be  guilty  of  both  of  the  charges  preferred  against 
him,  and  dismissed  him  from  the  police  force.  The  relator  now  seeks, 
by  writ  of  certiorari,  to  review  this  determination  of  the  commissioner 
and  to  have  it  reversed. 

The  learned  counsel  for  the  relator  urges  that,  as  the  present  police 
commissioner  had  never  adoj^ted  as  his  own  and  promulgated  the  rules 
and  regulations  issued  by  his  predecessor,  there  were  no  rules  of  the 
department  in  existence  under  which  the  relator  could  be  disciplined 
by  the  present  commissioner.  This  contention  cannot  be  sustained. 
The  police  department  is  a  continuous  body,  and,  while  the  executive 
headThereof  may  be  changed  from  time  to  time,  such  change  never 
contemplated  the  readoption  of  all  previous  rules  and  regulations  in 
orderTo  inalte  them  binding  on  the  force;  those  rules  and  regula- 
tibiis~s'tood,  not  as  the  act  or  declaration  of  an  individual,  but  of  the 
official  head  of  the  department,  and  they  continued  to  be  binding 
on  the  police  force  till  altered  or  repealed  by  the  proper  authority.  ^ 

1  The  remainder  of  the  opinion  is  omitted.  —  Ed. 


'V^j  1 


20: 


.-^A-      Q^JlAMcCOfiTLE    ?;.    BATES. 

if^%jy^\i>>*^        McCORTLEv.  BATES. 


1876.     29  Ohio  St.  419. 


ir^       Motion  for  leave  to  file  a  petition  in  error  to  the  District  Court  of 
Noble  county. 

The  original  action  was  brouglit  by  the  plaintiffs  against  Bethel 
Bates,  Andrew  J.  Moore,  Josephus  Groves,  E.  H.  Craft,  and  I.  Q. 
Morris,  in  the  Court  of  Common  PJeas  of  Noble  county. 

The  following  are  the  facts,  so  far  as  they  are  material  to  be 
noticed: 

On  the  loth  day  of  October,  1870,  the  defendants  were  members  of 
the  board  of  education  of  vSeneca  township,  in  said  courty,  and  on  that 
day  they  entered  into  an  agreement  in  writing  with  one  J.  S.  Wachob, 
of  which  the  following  is  a  copy: 

"Mr.  J.  S.  Wachob  is  hereby  requested  to  forward  to  Herman 
Suabidissen,  township  clerk,  the  following  list  of  articles,  viz  :  Seven 
excelsior  globes,  seven  inches  in  diameter,  mounted  as  per  cut  here- 
with, provided  a  majority  of  the  members  of  the  board  of  education  of 
Seneca  township.  Noble  county,  Ohio,  sign  this  order;  and  we  hereby 
agree  to  pay  for  the  same  on  or  before  the  first  day  of  September, 
1871,  with  interest,  at  the  price  hereto  annexed. 

"  The  township  clerk  is  hereby  directed  to  issue  an  order  on  the 
township  in  the  pa3'ment  for  the  same  in  favor  of  said  Wachob,  pay- 
able as  above  specified,  and  he  is  further  requested  to  call  a  special 

meeting  of  said  board  within days,  at  which  meeting  we  agree 

with  each  other  that  we  will  ratify  this  contract. 

' '  Bethel  Bates, 
"Andrew  J.  Moore, 
"  Josephus  Groves, 
"E.  H.  Craft, 
"I.  Q.  Morri^. 
"  October  IS,  1870." 

Then  followed  a  long  list  of  school  apparatus  with  prices  annexed, 
the  price  annexed  to  the  globes  contracted  for  being  Sl5  each.  The 
glubes  were  delivered  to  the  township  clerk,  who  drew  an  order  on  the 
treasurer  of  the  township,  as  directed,  for  ^105,  in  favor  of  Wachob, 
payable  September  1,  1871.  This  order  and  Wachob's  interest  in  the 
above-recited  agreement  were  assigned  by  him  to  the  plaintiff,  after 
which  the  board  of  education,  acting  in  its  corporate  capacity,  re- 
pudiated the  contract,  and  the  treasurer  refused  to  pay  the  order; 
whei-euponThe  plaintiff  brought  his  action  against  the  members  of  the 
board  signing  the  contract  to  recover  upon  their  alleged  individual 
promise  to  pay  for  the  globes.  The  defendants  demurred  to  a  petition 
stating  the  foi-egoing  facts,  upon  the  ground  that  the  facts  stated  were 


208  McCORTLE   V.    BATES. 

insufficient  to  constitute  a  cause  of  action.  The  demurrer  was  sus- 
tained, and  the  petition  dismissed.  On  error,  the  district  court  af- 
firmed the  judgment  of  the  common  pleas.  Leave  is  here  asked  to  file 
a  petition  to  reverse  both  judgments. 

BoTNTON,  J.  The  contract  sued  upon  having  none  of  the  attributes 
or  immunities  of  commercial  paper,  the  plaintiff,  by  the  assignment  by 
Wachob  of  his  claim  against  the  defendants,  secured  and  succeeded  to 
such  rights,  and  such  only,  as  Wachob  possessed  at  the  time  of  the 
transfer. 

Such  defenses  as  would  have  been  allowed  had  he  retained  the 
claim  and  brought  suit  upon  it  himself,  are  now  admissible  against  the 
plaintiff.  Assuming,  without  deciding,  that  by  the  understanding  of 
the  parties  to  the  agreement  the  defendants  incurred  a  personal 
liability,  it  is  quite  clear  that  there  was  no  error  in  the  action  of  the 
common  pleas  in  sustaining  the  demurrer  and   dismissing  the  petition. 

The  request  to  Wachob  to  forward  the  globes,  provided  a  majority 
of  the  board  signed  the  order ;  the  agreement  to  pay  for  the  same  on 
or  before  September  1,  1871;  the  direction  to  the  township  clerk  to 
"  issue  "  an  order  on  the  township  in  favor  of  Wachob  for  the  amount 
agreed  upon ;  the  request  to  the  clerk  to  call  a  special  meeting  of  the 
board  for  action  upon  the  matter,  and  the  agreement  among  the  mem- 
bers signing  the  contract  to  ratify  the  same  at  such  meeting,  were  all 
elements  of  the  same  transaction.  The  paper  on  which  they  were 
written  contained  the  price-list  of  school  apparatus  belonging  to 
Wachob,  and  it  was  delivered  to  him  after  it  was  signed  by  the  de- 
fendants. He  was  not  only  cognizant  of  its  contents,  but  a  party  to  its 
stipulations.  The  promise  or  agreement  of  the  members  of  the  board, 
inter  sese,  to  ratify  the  contract  at  the  meeting  to  be  called,  was  to  the 
knowledge  of  Wachob  a  material  inducement  to  the  agreement  to  pur- 
chase, and  made  for  his  benefit.  He  accepted  an  order  drawn  on  the 
treasurer  in  anticipation  of  such  ratification.  It  was  an,  agreement  to 
avoid  or  evade  personal  liability,  if  any  was  incurred,  by  shifting  it 
to  the  township.  It  is  not  unlike,  in  its  legal  aspect,  a  promise  or 
agreement  by  a  legislator,  or  member  of  a  city  or  town  council,  to  act 
and  vote  upon  a  pending  measure,  in  a  certain  way,  for  a  considera- 
tion paid.  Such  promise  or  agreement  was  clearly  contrary  to  pu])lic 
policy,  and  therefore  illegal  and  void.  Its  effect  is  to  vitiate  the 
whole  instrument. 

The  board  is  constituted,  by  statute,  a  body  politic  and  corporate  in 
law,  and  as  such  is  invested  with  certain  corporate  powers,  and 
charged  with  the  performance  of  certain  public  duties.  These  powers 
are  to  be  exercised,  and  these  duties  discharged,  in  the  mode  pre- 
scribed by  law.  The  members  composing  the  board  have  no  power  to 
act  as  a  board,  except  when  together  in  session.  They  then  act  as  a 
body  or  unit.  The  statute  requires  the  clerk  to  record,  in  a  book  to  be 
provided  for  that  purpose,  all  their  official  proceedings.  They  have, 
in  their  corporate  capacity,  the  title,   care,    and  custody  of  all  school 


HOFFMAN   V.    BOARD   OF   EDUCATION.  209 

property  whatever  within  their  jurisdiction,  and  are  invested  with  full 
power  to  control  the  same  in  such  manner  as  they  may  think  will  best 
subserve  the  interest  of  the  common  schools  and  the  cause  of  educa- 
tion. They  are  required  to  prescribe  rules  and  regulations  for  the 
government  of  all  the  common  schools  within  the  township.  Clothed 
with  such  powers,  and  charged  with  such  duties  and  such  responsi- 
bilities, it  will  not  be  permitted  to  them  to  make  any  agreement  among 


themselves,  or  with~others,  b}-  which  their  i)ul)lic  action  is  to  be,  or  _ 
may  hv  lestniiiud  or  embairasseil,  _or  its  freedom  in  any  wise  affected 
"or  imijaired.  The  public,  for  whom  tliey  act,  have  the  right  to  their 
Te¥t  judgment  after  free  and  full  discussion  and  consultation  among 
themselves  of,  and  upon,  the  public  matters  intrusted  to  them,  in  the 
session  provided  for  by  the  statute.  This  cannot  be  when  the  mem- 
bers, by  pre-engagement,  are  under  contract  to  pursue  a  certain  line 
of  argument  or  action,  whether  the  same  will  be  conducive  to  the  pub- 
lic good  or  not.  It  is  one  of  the  oldest  rules  of  the  common  law,  that 
contracts  contrary  to  sound  morals,  or  against  public  polic}'^,  will  not 
be  enforced  by  courts  of  justice  —  ex  facto  illicito  non  oritur  actio ;  ^ 

and  the  court  will  not  e^ter_on_.thg...iajj[iiiiy^.sJLe.tb,er„su^^^  uj-^.-A:iJU 

would,  or  would  not  in  a  given  ease,  be  injurious,  iu  its.OQiiseqiieJJCjgsl 
if  enforced.     Jt  being  against  the  public  interest  to  enforce  it,    the  law 
refuses  to  recognize  its  claim  to  validity. 

,__<,,  '  Leave  refused. 

^^'^-^^^  • ''" 


tK^ 


'    >-^  i^EOPLE   EX   REL.    HOFFMAN    v.   BOARD   OF   EDUCATION. 

"qV^^  Earl,  J.i  The  relator  was  principal  of  one  of  the  public  schools  ir 
the  cit}'  of  New  York,  and  she  was  fined  by  the  board  of  education 
"  fifteen  days'  pay  for  disobeying  the  instructions  of  the  city  superin- 
tendent"; and  she  instituted  this  proceeding  by  certiorari  to  review 
and  reverse  the  imposition  of  that  fine.  She  claims  that  tLe  board  had 
no  authority  to  impose  the  fine,  and  in  this  we  think  she  is  clearly 
right. 

The  imposition  of  a  fine  is  a  species  of  punishment,  and  before  any 
body,  tribunal  or  officer  can  impose  it,  authority  therefor  must  be 
clearly  found  in  some  statute. 

Sections  1022  and  1026  of  the  New  York  City  Consolidation  Act  of 
1882  provide  that  the  board  of  education  "shall  have  full  control  of 
the  public  schools  and  the  public  school  system  of  the  city,  subject 
only  to  the  general  statutes  of  the  state  upon  education  "  ;  and  this  is 
the  sole  provision  of  law  invoked  by  the  respondents  as  authority  for 
the   imposition   of  the    fine.     Under  it  the    board  of  education  may 

^  Arguments  omitted.  —  Ed. 


210  HOFFMAN   V.   BOARD    OF   EDUCATION. 

establish  schools,  regulate  the  course  of  instruction  therein,  and  shape 
the  entire  educational  system  for  the  cit3^  It  may  provide  for  the 
discipline  and  government  of  the  scholars  in  the  schools.  But  could 
it  impose  pecuniary  fines  upon  them  for  any  misconduct  or  dereliction, 
and  thus  deprive  them  of  their  property?  Could  it  imprison  them  or 
sit  in  solemn  judgment  upon  them  and  order  the  infliction  of  corporeal 
punishment?  If  it  could  not  do  these  things,  much  less  could  it  dis- 
cipline or  punish  teachers  in  these  ways.  The  relator  never  in  any 
way  submitted  herself  to  such  a  jurisdiction,  and  there  is  no  general 
law  which  confers  it.  If  the  board  could  thus  deprive  her  of  fifteen 
days'  pay,  where  is  the  limit?  Why  could  it  not  deprive  her  of  one 
month's  pay  or  a  whole  year's  salary  already  earned?  If  it  could  com- 
pel her  to  forfeit  money  already  earned,  why  could  it  not  enforce 
a  fine  against  her  other  property?  If  the  board  has  such  a  power, 
where  are  its  limits  and  who  is  to  define  them? 

If  the  board  had  adopted  by-laws  for  the  regulation  of  the  schools^ 
and  the  teacTiers  therein,  and  the'  relator  had  assented  to  tlaem,  then 
they  might  have  become  binding  upon  her  as  part  of  her  contract  with 
fIie"'l5oard,  and  under  such  by-laws  it  might  have  had  power  of  discip- 
line and  control  over  teachers  which  it  could  not  otherwise  have  or 
possess.  But  here  there  was  no  by-law,  rule  or  regulation  known  or 
assented  to  by  the  relator  under  which  any  fine  could  be  imposed  upon 
her.  The  board  of  education  can,  under  certain  conditions  mentioned 
in  the  laws,  remove  teachers,  and  by  the  exercise  of  that  power  it  can 
protect  the  schools  against  the  incompetency  and  the  improper  conduct 
of  teachers. 

The  board  of  education  is  a  quasi  municipal  or  governmental  corpo- 
ration7~and  no  such  corporation  has  power  to  impose  fines  or  to  pass 
ordinances  authorizing  the  imposition  of  fines  without  the  clear  author- 
ity of  some  statute.  In  Dillon  on  Municipal  Corporations,  sees.  345 
and  348,  it  is  said:  "A  corporation,  under  a  general  power  to  make 
by-laws,  cannot  make  a  by-law  ordering  a  forfeiture  of  property.  To 
warrant  the  exercise  of  such  an  extraordinary  authority  by  a  local  and 
limited  jurisdiction,  the  rule  is  reasonably  adopted  that  such  author- 
ity must  be  expressly  conferred  by  the  legislature."  "  In  this  coun- 
try, inasmuch  as  corporations  derive  all  their  power  from  charter  or 
act  of  the  legislature,  the  right  to  inflict  a  forfeiture  must  be  plainly 
given,  and  cannot  be  derived  fr^m  usage."  In  Kirk  v.  Nowill  (1  T.  R. 
124)  the  question  was  whether  a  corporation  which  possessed  a  gen- 
eral power  to  make  by  laws  could  make  a  by-law  creating  a  forfeiture, 
and  Lord  Mansfield  held  that  no  corporation  possessed  such  an  ex- 
traordinary power  unless  it  was  expressly  given ;  and  Mr.  Justice 
BuLLER  also  said  that  construing  it  a  by-law  creating  a  forfeiture, 
the  act  of  Parliament  not  having  given  the  corporation  power  to  make 
such  a  by-law,  it  was  bad  on  that  ground;  and  a  similar  doctrine  was 
laid  down  in  Hart  v.  Mayor,  etc.  (9  Wend.  571,  588),  and  Dtrnhain 
V.  Bodicster  (5  Cow.  462),  and  in  many  other  cases.     This  fine  was  in 


STAGE   V.   MACKIE.  211 

the  nature  of  a  forfeitii]^«^,  ^f  vnlifl.,  n-g  it  nrnnpnlTpd  the  relator  to  forf uLt 


dportioa  of  her  salary  earned. 

i  As  this  fine  was  imposed  upon  the  relator  without  authority  it  could 
do  her  uo  harm,  and  could  not  stand  in  the  way  of  the  collection  by 

i  her  of  her  salary  as  a  teacher,  and,  therefore,  it  may  well  be  doubted 
whether  she  could  properly  institute  this  proceeding  by  certiorari  to 
review  and  reverse  the  utterly  void  and  harmless  proceeding  of  the 
board  of  education.  But  as  this  proceeding  was  entertained  in  the 
court  below,  and  no  objection  has  been  made  to  its  propriety,  we  will 
assume  that  it  was  proper ;  and  our  conclusion  is  that  the  order  of  the 
General  Term  and  the  proceeding  of  the  board  of  education  imposing 
the  fine  should  be  reversed  and  set  aside,  with  costs  to  the  relator  in 
this  court  and  the  court  below. 


^      Section  III. — Officers. 

^^f  ^^''^vJi'^'^TATE  EX  REL.  STAGE  v.  MACKIE. 
(y^^^*^^*^  1909.     74.4^^.759.     v 

^  O^,  Appeal  from  Superior  Court,   New  Haven   county;    George  W. 

-x-^^^^Xf^HEELER,  Judge. 

D\i       Information  in  the  nature  of  quorvarrantq  by  the  State,   on  the 

^        relation  of   Otto   G.   Stage,    against   Robert   Mackie.     There   was  a 

-sA'^judgment  ousting  respondent  from  office  and  affirming  the  right  of 

relator  to  it,  and  respondent  appeals.     Error,  and  judgment  set  aside. 

.f^     A^      The  charter  of  the  city  of  Waterbury  provided  that  its  board  of 
^.fi^    aldermen  might,  in  a  manner  prescribed,  make  ordinances  "  to  provide 

%  for   the   appointment  of   a   building   inspector    and  to  prescribe  his 

duties."  It  also  conferred  upon  the  board  "the  power  to  provide  for 
the  appointment  or  election  of  such  employes  as  are  not  otherwise 
provided  for,  and  as  may  be  required  for  the  proper  transaction  of  the 
business  of  the  city,  and  to  prescribe  their  duties  and  compensation." 
Having  this  authority,  the  board  adopted  an  ordinance  creating  the 
oflSce  of  building  inspector,  and  defining  the  powers  and  duties  of  its 
incumbent.  It  was  also  provided  that  there  should  be  a  deputy 
building  inspector,  that  he  should  act  in  place  of  the  building  inspector 
and  exercise  all  of  his  powers  during  the  latter's  absence  or  disability, 
and  in  the  event  of  the  latter's  death  perform  all  of  his  duties  until  an 
appointment  should  be  made  to  fill  the  vacancy,  that  he  should  be 
biennially  appointed  by  the  board  in  the  month  of  January  of  the  even 
numbered  years,  and  that  he  should  hold  office  for  two  years  from  the 
first  Monday  of  February  next  following  his  appointment,  and  until 
his  successor  was  duly  appointed  and  qualified. 

Under  this  ordinance  one  Smith  was  appointed  for  the  term  of  two 
years  from  the  first  Monday  of  February,  1904.     In  April,  1905,  the 


212  STAGE   V.   MACKIE. 

General  Assembly  passed  a  special  act  (14  Sp.  Laws,  p.  619).  which 
provided  that  the  building  inspector  and  assistant  building  inspector 
of  the  city  of  Waterbury  then  in  office  should  hold  their  respective 
offices  during  good  behavior  subject  to  a  power  of  removal  in  a  manner 
prescribed.  Smith  died  March  5,  1906,  and  the  board  in  June  elected 
the  relator  deputy  building  inspector  to  fill  Smith's  uuexpired  term. 
The  relator  thereupon  qualified  and  entered  upon  the  duties  of  the 
position.  January  20,  1908,  the  board  proceeded  to  the  election  of  a 
deputy  building  inspector  for  the  term  of  two  years  from  the  first 
Monday  of  February  next  following.  The  votes  of  the  entire  board 
were  cast  for  the  respondent,  who  was  a  member  of  the  board,  present, 
and  voting  for  himself,  and  he  was  declared  appointed.  The  respond- 
ent thereupon  qualified,  and  entered  upon  the  duties  assigned  to  said 
position,  which  he  has  since  continued  to  perform  to  the  exclusion  of 
the  relator.  'I!^e__board  of  aldermen  took  no  action  declaring  said 
position  vacant,  or  creating  a  vacancy  therein,  except  said  appoint^ 
meht  of  the  respondent.  The  relator  made  ineffectual  demand  of  the 
respondent  for  the  office,  which  is  one  of  profit.  The  relator  claims 
the  office,  contending  that  his  appointment  thereto  was  one  at  the 
will  of  the  board  of  aldermen,  and  that  the  board  has  taken  no  lawful 
action  terminating  his  term.  He  contends  that  the  attempted  appoint- 
ment of  the  respondent  as  his  successor  cannot  have  the  effect  of  either 
terminating  his  term  or  of  entitling  the  respondent  to  succeed  him, 
since  the  respondent  was  a  member  of  the  board  of  aldermen  and  voted 
for  himself,  and  for  the  further  reason  that  his  duties  as  inspector  of 
buildings  would  be  incompatible  with  his  duties  as  an  alderman. 

Prentice,  J.  (after  stating  the  facts  as  above).  Quo  tcarranto 
proceedings  lie  to  prevent  the  usurpation  of  a  public  office  or  franchise. 
These  were  begun  to  try  the  title  to  a  position  attempted  to  be  created 
by  an  ordinance  of  the  city  of  Waterbury,  and  attempted  to  be  filled 
by  the  board  of  aldermen  of  the  city.  They  must  fail  for  the  reason 
that  there  is  no  such  office.  To  justify  a  resort  to  the  extraordinary 
remedy  here  iuvoked,  there  must  be  an  office  legally  authorized  and 
constituted.  State  v.  North,  42  Conn.  79,  86  ;  CommoniceaUh  v.  Dear- 
horn,  15  Mass.  125;  High  on  Extraordinary  Legal  Remedies,  §625. 
The  position  in  question  is  one  to  which  the  ordinance  creating  it 
attempted  to  attach  important  powers  and  functions  of  government 
belonging  to  the  sovereignty,  and  therefore  was  a  "  public  office,"  as 
distinguished  from  a  mere  employment  or  agency  resting  on  contract, 
and  to  which  such  powers  and  functions  are  not  attached.  Perkins  x. 
New  ITa.ifenj  6o  Conn.  214,  215  1  Atl.  825;  Seymour  v.  Ooer-River 
School  District,  53  Conn.  502,  509  3  Atl.  552  ;  Rylands  v.  Pinkerman, 
63  Conn.  176,  182,  28  Atl.  110,  22  L.  R.  A.  653.  "A  public  office  is 
a  right,  authority,  and  duty  created  and  conferred  by  law,  by  which 
...  an  individual  is  invested  with  some  portion  of  the  sovereign  func- 
tions of  the  government  to  be  exercised  by  him  for  the  benefit  of  the 
public."     Mechem  on  Public  Officers,  §  1.     '•  It  implies  a  delegation  of 


STAGE   V.   MACKIE.  213 

a  portion  of  the  sovereign  po'wer  to  and  possession  of  it  by  the  person 
filling  the  office."  United  States  v.  Hartivell,  6  Wall.  385,  393  (lb  L. 
Ed.  830);  Opinion  of  the  Justices,  3  Greenl.  (Me.)  481,  482  ;  Pattonx. 
Board  of  Health,  127  Cal.  388,  394,  59  Pac.  702,  78  Am.  St.  Rep.  66. 
It  is  a  trust  conferred  by  public  authority  for  a  public  purpose,  and 
involving  the  exercise  of  the  powers  and  duties  of  some  portion  of  the 
sovereign  power.  Clark  v.  Easton,  146  Mass.  43,  45,  14  N.  E.  795; 
Attorney  General  v.  Drohan,  169  Mass.  534,  535,  48  N.  E.  279,  61 
Am.  St.  Rep.  301  ;  People  v.  Kij^ley,  171  111.  44,  71,  49  N.  E.  229,  4i 
L.  R.  A.  775.  Such  being  the  nature  of  a  public  office,  it  is  apparent 
that  its  source  must  in  this  country  be  found  in  the  sovereign  authority 
speaking  through  Constitution  and  statute.  The  creations  of  the  sov- 
ereign power  cannot,  in  the  absence  of  a  delegated  authority,  create 
one.  High  on  Extraordinary  Remedies,  §  426 ;  ,^^ate_y.^  Sjmidding, 
102  Iowa,  639,  647,  72  N.  W.  288;  Patton  y.  Board  of'HealtX'W 
Cal.  38&',"^^,"'o9  Pac.  702,  78  Am.  St.  Rep.  66;  Miller  v.  Warner,  42 
App.  Div.  208,  209,  59  N.  Y.  Supp.  956  ;  Cooimonwealth  v.  Swasey,  133 
Mass.  538,  589. 

The  source  of  the  alleged  office  here  in  controversy  is  a  city  ordi- 
nance. The  state  had  delegated  to  the  city  in  its  charter  the  power  to 
provide  for  the  appointment  of  a  building  inspector,  and  to  prescribe 
his  duties.  12  Sp.  Laws  1895,  p.  438,  §  21.  It  had  not  delegated  the 
power  to  provide  for  the  appointment  of  a  deputy  building  inspector, 
and  to  prescribe  his  duties.  Tlie  city  was  without  inherent  power  to 
create  such  a  public  position  and  to  endow  it  with  the  jurisdiction  and 
authonty "aUempteH  16~  be  conferred.  No  such  power  was  impliedly 
graivEedTjy  the  charter  provision  referred  to.  The  right  to  create  one 
office^does^ot  imply  the  right  to  create  two.  The  right  to  provide  for 
the  appointment  of  an  officer  does  not  involve  or  imply  the  right  to 
provide  for  substitutes  and  alternates  ad  libitum.  The  right  to  pre- 
scribe  the  power  and  duties  of  a  designated  ollicial,  and  to  endow  him 
with  that  power,  does  not  carry  with  it  the  right  to  endow  several  per- 
sons in  the  alternative  with. that  power. 

The  charter  provision  giving  the  board  power  to  provide  for  the  ap-, 
pointnicnt  or  election  of  employes,  and  to- prescribe  their  dufres"aiT'd 
compensation,  was  also  inadequate  as  a  conferment  of  authority  to 
create  public  offices,  to  provide  for  the  choice  of  incumbents,  and  to 
endow  those  incumbents  with  portions  of  the  sovereign  power  at  pleas- 
ure. Thjs  provision  was  limited  in  its  application  to  employes,  and  its 
language  was  chosen  to  clearly  indicate  that  fact.  Ifis  scarcely  con- 
ceivable that  the  state  should  have  delegated  to~one  of  its  creations  its 
sovereign  power  in  any  such  wholesale  way  as  to  enable  the  latter  to 
create  such  offices  as  it  pleased,  and  attach  to  them  the  exercise  of 
such  portions  of  the  sovereign  power  as  it  pleased,  and  thus  surrender 
to  its  creature  its  power  of  direction  and  dictation,  and  the  charter 
provision  referred  to  was  too  carefully  guarded  in  its  language  to  give 
countenance  to  such  a  contention. 


214  FITZPATRICK   V.    FRENCH. 

It  might  possibly  be  a  wise  precaution  to  provide  for  the  contingency 
of  the  death,  absence  or  disability  of  the  single  official  for  which  the 
sovereign  authority  has  provided  ;  but  that  is  a  matter  for  whicli  that 
authority  is  alone  qualified  to  deal.  It  has  not  done  so  save  as  the 
special  act  of  1905  concerned  the  matter.  Whatever  may  have  been 
the  effect  of  that  act  during  the  lifetime  of  the  then  incumbent,  it 
could  not  have  amounted  to  a  ratification  of  the  city  ordinance,  as 
permanent  legislation,  creating  the  office  of  deputy  or  assistant  build- 
ing inspector,  and  defining  the  powers  and  duties  attached  to  it. 

There  is  error,  the  judgment  is  set  aside,  and  the  cause  remanded 
for  the  rendition  of  a  judgment  dismissing  the  information.  The  other 
Judges  concur.  $^V.--^^. \rt«J 

^  '   '         PEOPLE  EX  REL.  FITZPATRICK  v.  FREXCH. 

1884.     32  Hun.  112. 

^jf**  ^  Certiorari  to  review  the  action  of  the  board  of  police  commission- 
ers in  removing  the  relator  from  the  police  force. 

Davis,  P.  J.^  The  relator  was  tried  upon  a  charge  of  "  conduct 
unbecoming  an  officer."  The  specification  was,  in  substance,  that  the 
relator  on  the  14th  of  April,  1883.  "  during  his  tour  of  patrol  duty,  pre- 
tended that  the  window  of  a  drinking  saloon,  No.  16  Dutch  street,  had 
been  burglariously  broken  by  some  person  unknown  and  a  short  time 
after  entered  the  said  saloon  and  wrongfully  broke  open  boxes  contain- 
ing cigars,  the  property  of  the  owner  of  the  saloon,  and  surreptitiously, 
without  consent  of  the  owner,  took  and  carried  away  in  his  pocket 
one  hundred  and  sixteen  cigars,  which  were  subsequently  found  upon 
his  person  when  he  was  searched  and  identified  by  William  A.  Jen- 
nings, the  proprietor  of  said  drinking  saloon,  as  his  property." 

It  is  not  asserted  that  there  was  any  irregularity  in  form  in  the  pro- 
ceedings and  trial  of  the  relator,  but  it  is  insisted :  First.  That  the 
charge  imported  a  criminal  offense  of  either  burglary  or  larceny,  which 
the  commissioners  had  no  jurisdiction  to  try  ;  and  second,  That  the 
evidence  was  not  sufficient  to  justify  a  conviction  of  any  offense,  or  of 
"  conduct  unbecoming  an  officer." 


o 


The  other  question  of  the  case  is  whether  the  commissioners  had 
jurisdiction  to  try  the  charge  set  out  in  the  specification.  This  ques- 
tion arises  only  upon  the  assumption  that  the  specification  set  out  a 
criminal  offense,  for  which  the  relator  might  be  indicted  and  tried  in  a 
court  of  justice,  and  that  therefore  he  could  not  be  tried  and  removed 
by  the  commissioners  until  he  had  been  cou^^cted  on  trial  by  a  crim- 
inal court. 

•  •  ••  ••  •• 

1  Part  of  the  opinion  only  is  given. — Ed. 


FITZPATKICK    V.   FKENCH.  2.15 

This  argument,  it  is  manifest,  altogether  rests  upon  the  idea  that 
the  inquiry  of  the  board  of  police  contravenes  the  provisions  of  the 
Constitution  which  secure  to  persons  accused  of  crime  the  established 
modes  of  trial  upon  indictment  and  before  a  court  and  jury  in  the 
higher  classes  of  crime,  and  the  procedure  in  and  by  courts  with  or 
without  jury  in  the  lower  grades.  But  it  ignores  the  fact  that  the  in-  p^.^ 
vesti"ation  of  the  police  board  is  not  such  a  trial  and  entails  no  such 
consequiMices  u[)()n  an  accused  party.  It  is  precisely  analogous  to  the 
investigation  by  any  other  corporate  body  of  the  fitness  of  its  servants 
to  remain  in  charge  of  the  duties  they  are  appointed  to  perform,  or  of 
members  of  the  corporate  body  to  continue  in  that  relation.  The  city 
of  New  York  is  a  public  corporation.  The  police  department  is  one  of 
the  agencies  through  which  its  functions  are  to  be  performed  ;  and  no 
court  has  ever  held  that  the  heads  of  that  department  cannot  be  re- 
moved upon  adequate  grounds  in  the  manner  the  legislature  may  see 
fit  to  prescribe.  But  the  argument  is  that  if  he  be  a  murderer,  or 
felon,  or  criminal  of  any  grade,  the  legislature  cannot  authorize  his 
removal  by  any  authority  until  he  has  first  been  indicted,  tried  and 
convicted  and  sentenced  by  a  constitutional  court  of  justice  in  the 
forms  preserved  by  the  Constitution.  It  is  not  well  to  confuse  lhe_ 
powers  of  administrative  or  executive  bodies  to  remove  subordinates 


for  any  conduct  showing  unfitness  for  place  or  position,  with  the  pra- 
ceediugs  of  courts  of  justice  to  punish  crimes.  They  are  essentially 
different  in  their  objects,  and  may  and  do  exert  and  move  in  their  re- 
spective spheres  without  collision  or  inconsistency.  If  it  be  true  that 
a  policeman  guilty  of  felony  cannot  be  removed  by  the  board  till  after 
his  conviction  and  sentence  in  a  court  of  justice,  because  of  constitu- 
tional prevention,  then  some  astute  lawyer  will  speedily  insist  that  a 
felon  cannot  be  removed  at  all  for  crime,  because  the  same  constitu- 
tional safeguards  provide  that  he  shall  not  be  twice  tried  or  punished 
for  the  same  offense.  The  answer  will  be  that  a  conviction  of  felony 
forfeits  all  public  oflice ;  but  not  so  of  misdemeanors,  and  where  the 
convict  has  paid  the  penalty  imposed  by  the  court,  why  should  he  not 
interpose  the  plea  of  autrefois  convict,  when  the  police  board  arraign 
him  for  trial  and  another  punishment?  It  has  been  seen  that  legal 
offenses  are  all  grades  of  crime.  Let  us  consider  for  a  moment  the 
effect  of  the  construction  given  to  the  section  authorizing  trial  bj'  the 
board  of  police,  which  requires  conviction  by  a  court  of  justice  before 
removal  or  any  other  punishment.  A  policeman  when  arraigned  be- 
fore the  board  in  such  a  case  may  always  answer  to  the  offense,  "I 
am  charged  with  a  crime,  you  must  arrest  your  proceedings  till  I  am 
convicted  in  court"  ;  and  then  if  the  board  venture  to  proceed,  a  writ 
of  prohibition  must  issue  from  the  court  for  want  of  jurisdiction  in 
in  the  board.  The  policeman  may  never  be  indicted  or  even  arrested 
for  the  offense,  or  never  brought  to  trial  in  court;  but  that  makes  no 
difference  with  the  question  of  jurisdiction  of  the  board,  since  convic- 
tion in  court  is  a  condition  precedent;    and  so  the  police  force  may 


216  FITZPATEICK   V.    FKENCH. 

grow  in  time  into  a  body  of  accomplished  criminals,  whom  the  com- 
missioners cannot  remove  nor  suspend,  nor  withhold  their  pay,  nor 
even  reprimand,  because  the  dilatory  or  over-crowded  courts  do  not 
bring  them  to  trial  and  conviction.  And  again,  if  a  policeman  guilty 
of  any  crime,  however  monstrous,  can  slip  through  the  meshes  of  the 
law  on  some  technicality,  he  can  laugh  at  both  courts  and  commission- 
ers and  hold  his  office  by  the  absolute  title  of  an  unconvicted  police- 
man. When  we  consider  the  vast  scope  of  the  phrase  "  legal  offenses," 
we  shall  be  able  to  estimate  the  possible,  if  not  probable,  conse- 
quences of  such  a  rule  as  is  laid  down  in  Siebert's  case.  Every 
misdemeanor  as  well  as  every  felonj'  triable  by  any  court  is  within  its 
significance ;  and  as  every  willful  neglect  of  duty  by  a  public  officer  is 
a  misdemeanor,  the  power  of  the  board  to  remove  before  conviction  is 
reduced  substantially  to  cases  of  accident,  where  there  should  perhaps 
be  no  removal  at  all.  The  offender  could  defeat  jurisdiction  in  all 
cases  by  showing  that  his  offense  was  willful,  or  that  he  violated  the 
rules  intentionally,  or  that  he  purposely  was  guilty  of  the  "  conduct  in- 
jurious to  public  morals." 

Every  policeman  charged  with  crime,  Avho  could  get  out  on  bail,  no 
matter  what  his  offense,  nor  how  clearly  provable,  could  still  walk  the 
street  .clad  in  a  policeman's  uniform,  with  authority  to  club  his  fellow 
citizens  till  his  trial  should  come  off ;  or,  if  unable  to  get  bail,  his  ab- 
sence from  duty  while  in  jail  awaiting  trial,  being  enforced  by  law, 
would  be  excusable  absence  and  not  prejudicial  to  his  right  to  hold  the 
office  or  draw  his  salary. 

The  argument  v'^vctio  (td  ithsurdum  is  in  this  case  valuable. because 
it  shows  so  forcibly  the  dangers  to  which  the  contrary  view  exposes 
the  public  peace  and  safety  in  their  most  vulnerable  point.  Nothing 
can  be  more  important  than  a  competent  and  faithful  police  force  in 
our  city,  and  nothing  therefore  is  more  necessary  than  that  the  heads 
of  the  department  should  be  clothed  with  the  most  ample  and  sum- 
mary authority,  upon  conviction,  to  remove  the  members  of  the  force 
who  are  guilty  of  any  legal  offense,  or  of  acts  dangerous  to  the  morals 
or  peace  of  the  public. 

We  have  therefore  no  hesitation  in  saying  that,  both  in  reason  and 
in  law,  the  board  of  police  have  power,  in  the  form  prescribed  by 
statute,  to  examine  into  all  offenses  committed  by  policemen,  for  the 
purpose  of  purifying  or  disciplining  the  force,  witliout  rcstrittion  or 
limitation  based  upon  the  criminal  character  or  other  heiuuus.ncss  of 
the  crime., 
\  We  think  the  proceedings  of  the  board  in  this  case  should  be  af- 
firmed, and  the  writ  dismissed,  with  costs. 


-^^.  ''^^-^Y-kj^J^  "  l>^^*^. 


HAGEliTY    V.    SHEDD.  217 

HAGERTY  v.   SIIEDD. 

1909.     75  .V.  //.  393. 

Bingham,  J.  The  first  proceeding  is  a  petition  for  a  writ  o{  certio- 
rari, direetiug  the  mayor  and  aldermen  of  tlie  city  of  Nashua  to  certify 
the  records  of  their  proceedings  in  removing  Hagerty  from  member- 
ship in  the  board  of  public  worivs  of  the  city,  and  asking  that  their 
order  removing  him  from  office  be  decreed  null  and  void.  Tlie  second 
is  a  petition  for  a  writ  of  quo  warranto  to  oust  the  defendant  Crowley 
from  membership  in  the  board  of  public  works,  he  having  been  appoint- 
ed by  the  mayor  and  aldermen  of  the  city  to  fill  the  vacancy  caused  by 
the  removal  of  Hagerty,  and  having  qualified  and  entered  upon  the 
duties  of  the  office.  In  the  superior  court  the  writ  of  ctrUorari  was 
granted  and  the  record  and  proceedings  of  the  mayor  and  aldermen  in 
removing  Hagerty  from  office  were  quashed  and  adjudged  void,  and  the 
defendants  excepted.  In  the  quo  loarrcmto  proceeding  the  trial  judge 
found  that  the  defendant  was  usurping  the  office  from  which  Hagerty 
had  been  removed,  and  declined  to  allow  the  defendant  to  show  the  real 
cause  upon  which  the  mayor  and  aldermen  acted  in  making  the  order 
of  removal,  and  the  defendant  excepted. 

The  various  contentions  of  the  parties  in  these  cases  depend  largely 
upon  the  decision  of  the  question  of  the  capacity  in  which  the  mayor 
and  aldermen  acted  in  removing  Hagerty  from  office.  If  their  powers 
were  administrative  and  not  judicial,  there  would  be  no  occasion  for  a 
writ  of  certiorari  to  correct  the  record  or  set  aside  the  proceedings. 
State  V.  Richmond,  26  N.  H.  232,  236.  In  such  case  the  record  might 
be  amended  to  conform  to  the  facts,  on  motion  made  for  that  purpose 
in  any  proceeding  where  it  was  brought  in  question.  If,  however,  their 
powers  were  judicial,  the  mayor  and  aldermen  having  jurisdiction  of  the 
subject-matter  upon  which  they  acted,  there  may  have  been  and  probably 
was  occasion  for  a  writ  of  certiorari  to  set  the  proceedings  aside, 
although  they  were  summary,  without  preferment  of  charges,  notice  and 
hearing.  (lihhsy.  Manchester,  73  N.  H.  265,  267.  But  if  the  fact  that 
the  proceedings  were  summary  would  render  them  subject  to  attack  col- 
laterally, that  would  not  constitute  a  valid  objection  to  a  direct  proceed- 
ing to  set  them  aside.  "Indeed,  it  may  be  regarded  as  settled,  that 
though  a  party  has  a  right  to  treat  the  proceedings  of  an  inferior  tribunal 
as  nullities  in  a  collateral  proceeding,  he  may,  nevertheless,  maintain  a 
certiorari  to  set  them  aside."     State  v.  Richmond,  26  N.  H.  232,  237. 

It  appears  that  Ilagerty's  appointment  was  legal,  and  that  his  office 
carried  a  fixed  salary  and  was  for  a  term  of  three  years.  The  statute 
under  which  the  removal  was  made  reads  as  follows  :  "  The  mayor,~'with 
the  advice  and  consent  of  the  majority  of  the  full  board  of  aldermen, 
may  remove  an}'  member  appointed  as  aforesaid  for  cause."  Laws 
1909,  c.  283,  §2.     If  the  word  "cause,"  as  here  used,  means  legd 


218  HAGERTY   V.    SHEDD. 

cause  and  after  notice  and  hearing,  the  statute  confers  judicial  powers 
and  means  the  same  as  though  it  read  ' '  for  cause,  after  notice  and 
hearing."     Gihhs  v.  Manchester,  supra. 

In  Shannon  v.  Portsmouth,  54  N.  H.  183,  the  action  was  assumpsit 
to  I'ecover  compensation  for  the  services  of  the  plaintiff  as  a  constable 
and  police  officer,  from  July  17  to  December  15,  1870.  He  was  duly 
appointed  a  constable  and  police  officer  of  Portsmouth  January  13,  1870, 
and  qualified  and  served  as  such  down  to  July  7  of  that  year.  He  was 
then  notified  to  appear  before  the  mayor  and  aldermen  to  answer 
charges  verbally  preferred  against  him,  appeared,  and  was  heard. 
Thereupon  the  mayor  and  aldermen  voted  that  he  be  suspended  from 
duty.  From  that  time  down  to  December  15,  1870,  when  he  was  rein- 
stated, he  was  not  permitted  to  perform  the  duties  of  his  office,  although 
ready  and  willing  at  all  times  to  do  so.  At  the  trial  he  offered  to  prove 
that  there  was  no  sufficient  cause  for  his  removal  or  suspension,  but  the 
evidence  was  excluded  and  a  verdict  found  for  the  defendants,  subject 
to  exception.  The  provision  of  the  charter  of  Portsmouth  under  which 
the  action  was  taken  reads  as  follows :  "  They  [the  mayor  and  alder- 
men] shall  have  full  and  exclusive  power  to  appoint  a  city  marshal  and 
assistants,  constables,  and  all  other  police  officers;  .  .  .  and  to  re- 
move the  same  from  office  for  sufficient  cause,  the  mayor  and  aldermen 
each  having  a  negative  on  the  other,  both  in  the  appointment  and  re- 
moval of  officers."  Laws  1849,  c.  83G,  §  13.  In  construing  the  act 
it  was  held :  (1)  That  the  power  to  remove  included  the  power  to  sus- 
pend ;  (2)  that  the  evidence  offered  for  the  purpose  of  showing  that  the 
cause  for  which  the  plaintiff  was  suspended  was  not  a  legal  cause  was 
properly  excluded,  for  the  reason  that  the  suspension  proceedings  were 
judicial  and  could  not  be  attacked  collaterally ;  that  '"if  the  validity  of 
the  suspension  is  disputed,  the  plaintiff's  remedy  must  be  sought  in  a 
proceeding  for  that  purpose,  which  will  put  the  legality  of  the  acts  of 
the  mayor  and  aldermen  directly  in  issue." 

Although  the  reasoning  in  this  decision  may  not  be  as  explicit  as 
could  be  desired,  there  can  be  no  doubt  as  to  its  meaning,  and  that  it 
was  there  decided  that  the  power  conferred  on  the  ma^^or  and  aldermen 
by  the  charter,  to  remove  and  suspend  police  officers  and  constables  for 
sufficient  cause,  was  judicial.  Such  being  the  construction  of  a  legis- 
lative act  conferring  power  to  remove  for  cause  when  chapter  283,  Laws 
1901,  was  enacted,  it  is  to  be  presumed  that  the  legislature,  by  making 
use  of  the  same  language  or  its  equivalent  in  section  2,  intended  that 
it  should  be  taken  to  confer  like  power.  Green  v.  Bancroft,  lb  N.  H.  204, 
206.  Moreover,  it  is  generally  held  that  statutes  authorizing  the  re- 
moval  of  officers  for  cause  confer  judicial  powers  on  the  body  that  is  to 
exercise  them,  and  that  the  word  "  cause"  means  legal  cause,  an  J^n-' 
templates  a  charge,  notice,  hearing,  and  judgment  of  removal  upon 
cause.  Ham  v.  Board  of  Police,  142  INIass.  90;  State  v.  Hoglan,  6?" 
Ohio  St.  532;  Dullam  y.' Wilson,  53  INIich.  392  ;  People  v.  Therrien,  80 
Mich.  187;  Hallgrenv.  Campell,  82  Mich.  255 ;  State  v.  Common  Conn- 


ATTORNEY   GENERAL   V.   JENNINGS. 


219 


c«7,  53  Minn.  23S ;  State  v.  St.  Louis,  90  Mo.  19;  State  v.  JJ'albjidg-;, 
62  Mo.  App.  162  ;  S.  C,  69  Mo.  App.  657  ;  McGully  v.  State,  102  Tenn. 
509 ;  State  v.  Smith,  35  Neb.  13 ;  Benson  v.  People,  10  Col.  App.  175 ; 
State  V.  Heivitt,  3  So.  Dak.  187;  /%.7.s-  v.  Mc Bride,  17  Ore.  640; 
0.s-{70od  V.  iVe/5ow,  L.  R.  5  li.  L.  636-1  Dill.  Mun,  Corp.  (4th  ed.), 
§  250  ;  2  Abb.  Mun.  Corp.,  §  636;  Meeh.  Pub.  Off.,  §  454  ;  29  Cyc.  1409. 

The  power  of  removal  conferred  upon  the  mayor  and  aldermen  being 
judicial,  the  rejection  of  the  offer  to  show  that  the  cause  for  removing 
the  plaintiff  was  a  just  and  legal  one,  if  erroneous,  did  not  harm  the 
defendants;  for  the  proceedings  were  irregular  and  summary,  without 
preferment  of  charges,  notice,  and  hearmg,  and  would  not  be  cured  by 
a  finding  that  the  cause  of  removal  was  just  and  legal. 

The  position  of  the  defendant  Crowley,  who  was  made  a  party  to  the 
certiorari  proceedings,  that  he  was  entitled  as  a  matter  of  law  to  prove 
that  he  had  qualified  as  a  member  of  the  board  of  public  works  and  en- 
tered upon  the  performance  of  the  duties  of  his  office  at  the  time  the 
petition  for  a  writ  of  certiorari  was  served  upon  him,  and  to  have  the 
question  whether  he  was  a  usurper  determined  in  that  proceeding,  can- 
not be  sustained.  "The  superintending  power  of  the  court  is  limited 
to  the  correction  of  errors  of  law  apparent  upon  the  record,  or  to  re- 
quiring the  body  to  act  if  they  refuse  to  entertain  a  contest."  Sheelian 
v.  Mayor  and  Aldermen,  14:  N.  H.  445,  446.  INlatters  outside  the 
record  as  certified  from  the  inferior  tribunal  cannot  be  considered. 
Sheelian  v.  Mayor  and  Aldermen,  supra ;  Richardso7i\.  Smith,  59  N.  H. 
517,  519;  Hayvxird  \.  Bath,  35  N.  H.  514,  521;  Landaff's  Petition, 
34  N.  H.  163,  173;  Osgood  v.  Nelson,  L.  R.  5  H.  L.  636;"3  Abb.  Mun. 
Corp.,  §  1126. 

\  'v'oO  "if  Exceptions  overruled. 


\ 


\- 


All  concurred.* 


•P 


STATE    EX   REL. 


ATTORNEY  GENERAL 

1898.     57  Oh.  St.  415. 


V.   JENNINGS. 


MrNSHALL,  J.^     It  is  averred  b}^  the  attorney-general  in  the  petition 
that  James  Jennings  and  others  specifically  named,  having  been  and 

1  "Tlie  proceeding  therefore  must  be  instituted  upon  specific  charges,  sufficient  in 
their  nature  to  warrant  tlie  removal,  and  then,  unless  admitted,  be  proven  to  be  true. 
Defendant  might  also  cross-examine  tlie  witnesses  produced  to  support  the  charges, 
call  others  in  his  defense,  and  in  these  and  other  steps  in  the  proceeding  be  repre- 
sented by  counsel.     In  no  other  way  could  the  person  souglit  to  be  removed  have  a 
due  hearing  or  'an  opportunity  to  be  heard,'  and  this  condition  must  be  complied 
with  before  the  power  of  removal  is  exercised.     {Req.x.  Smith,  5  Q.  B.  614;  Osgood 
V.  Nelson,  5  H.  L.  C,  6,36;  People  v.  Fire  Com'rs,  72  N.  Y.  445).     It  follows,  therefore, 
\>^^ii''^^ thut  the  proceeding  is  judicial  in  its  character,  and,  as  a  necessary  consequence,  is 
'  \\/*'-  subject  to  review  by  a  writ  of  certiorari  issued  in  the  Supreme  Court  by  the  exercise 
^■^^""^"f  its  superintending  power  over  inferior   tribunals."'     Danforth,  J.,  in  People  v. 


^ 


^Nichols.  79  N.  Y.  582,  588. 
*  Arguments  omitted.  —  Ed. 


220  ATTORNEY   GENERAL   V.    JENNINGS. 

are  now  unlawfully  usurping  and  holding  the  offices  of  "  firemen"  in 
the  fire  department  of  the  city  of  Newark,  this  state,  and  asks  that 
they  be  ousted  therefrom  and  that  Frank  Alexander  and  others,  speci- 
fically named,  and  entitled  thereto,  be  inducted  into  the  offices  so 
usurped. 

The  case  has  been  submitted  to  the  court  on  an  agreed  statement  of 
factSj  from  which  it  appears  that  in  1895,  the  city  council  of  Newark 
passed  an  ordinance  organizing  its  fire  department ;  and  by  which  it 
was  provided  that  it  should  consist  of  ten  firemen,  one  of  whom  should 
be  elected  as  chief  by  the  appointment  of  the  mayor  with  the  advice 
and  consent  of  the  council,  and  provided  for  their  compensation.  The 
persons  whose  induction  is  asked  for  were  appointed  under  the  pro- 
visions of  this  ordinance.  The  chief  is  not  included  in  the  number 
and  all  were  simply  appointed  q,s,  "  firemen."  On  June  23,  1897,  the 
council  adopted  an  ardinance,  repealing  the  former  one,  and  providing 
for  the  employment  of  the  "  firemen  "  by  the  council,  the  chief,  how- 
ever, being  appointed  as  formerly.  The  section  as  to  the  firemen  is  as 
follows:  "The  said  council  shall  employ  as  many  assistant  firemen, 
from  time  to  time,  as  to  them  may  seem  necessary,  Avho  shall  receive 
for  their  services  not  to  exceed  $50.00  per  month."  Afterwards  the 
firemen  appointed  under  the  former  ordinance  were  discharged  by 
resolution  of  the  council,  and  by  another  resolution  the  defendants 
were  employed. 

The  contention  of  the  relator  is  that  a  fireman  is  an  officer,  and 
therefore,  under  section  1711,  Revised  Statutes,  which  requires  all 
officers  of  the  municipality,  not  elected  by  the  people,  to  be  appointed 
by  the  mayor  with  the  advice  and  consent  of  the  council,  the  defend- 
ants, not  being  so  appointed,  have  no  right  to  the  office,  should  be 
ousted,  and  the  former  incumbents  inducted  as  officers  holding  over 
until  their  successors  are  duly  appointed  and  qualified.  We  do  not 
adopt  this  view.  There  is  no  question  but  that  the  council  had  the 
power  to  repeal  the  former  ordinance ;  and  this  being  so,  and  all  the 
offices  created  b}'  it,  whatever  they  were,  being  thus  abolished,  the  in- 
cumbents ceased  to  be  officers,  for  there  can  be  no  incumbent  without 
an  office.  State  ex  rel.  Flin  v.  Auditor  of  State,  7  Ohio  St.  333 ; 
Gano  V.  State  ex  rel.,  10  Ohio  St.  238 ;  State  ex  rel.  Hawkins,  44 
Ohio  St.  98.  So  that  the  real  question  in  the_case  is,  whether  a 
"fireman"  is  an  officer;  or,  in  this  case,  whether  the  firemen,  for 
whose  em[)li)yraent  provision  is  made  in  the  ordinance  of  181'/  are 
officers.  For  that  a  position  in  the  fire  department  of  a  city  may  have 
such  duties  attached  to  it  as  to  constitute  an  office  is  not  questioned. 
The  chief  of  a  fire  department  performs  such  duties  as  make  him  an 
officer.  But  the  character  of  an  office  cannot  be  attached  to  a  position 
by  a  name  merely.  Whfiiliei-it  be  an  office  or  not,  will  depend  upoa^ 
the  nature  and  character  of  the  duties  attached  to  it  h\  law. 

Many  efforts  have  been  made  to  define  a  public  otlice  ;   and  it  is  onl}' 
the  incumbent  of  such  an  office  whose  rights  can  be  challenged  in  a 


ATTORNEY   GENEEAL    V.   JENNINGS.  221 

proceecliug  in  quo  warranto.     But  it  is  easier  to  conceive  the  general 
requirements  of  sucli  an  ofHce,  than  to  express  them  with  precision  in 
a  definition  that  shall  be  entirely  faultless.     It  will  be  found,  however, 
by  consulting  the  cases  and  the  authorities,  that  the  most  general  dis- 
tinction of  a  public  office  is,  that  it  embraces  the  performance  by  the 
incumbent  of  a  public  function  delegated  to  him  as  a  part  of  the  sov- 
ereignty of  the  state.     Thus  in  MeAchem's  Offices  and  Officers,  section 
4,  it  is  said:   "The  most  important  characteristic  which  distinguishes 
an  office  from  an  employment  or  contract,  is  that  the  creation  and  con- 
ferring of  an  office  involves  a  delegation  to  the  individual  of  some  of 
the  sovereign  functions  of  government,  to  be  exercised  by  him  for  the 
benefit   of   the   public ;  that  some  portion  of  the  sovereignty  of  the 
country,  either  legislative,  executive,  or  judicial,  attaches,  for  the  time 
being,  to  be  exercised  for  the  public  benefit.     Unless  the  powers  con- 
ferred are  of  this  nature,  the  individual  is  not  a  public  officer."     So  in 
High  on  Extraordinary  Legal  Remedies,  section  625,  it  is  said:  "An 
office,  such  as  to  properly  come  within  the  legitimate  scope  of  an  in- 
formation in  the  nature  of  a  quo  icarranto,  may  be  defined  as  a  public 
position,  to  which  a  portion  of  the  sovereignty  of  the  country,  either 
legislative,  executive,  or  judicial,  attaches   for   the  time  being,   and 
which  is  exercised  for  the  benefit  of  the  public."     And  in  the  case  of 
DarJey  v.  The  Queen,  12  CI.  &  Fin.,  520,  which  is  generally  cited  as  a 
leading  case,  and  where   the    question   was  whether  the  information 
would  lie  against  the  treasurer  of  the  city  of  Dublin,  Tindal,  C.  J., 
said  :  "  After  the   consideration    of   all   the  cases  and  dicta  on  the 
subject,  the  result  appears  to  be  that  this  proceeding  by  information 
in  the  nature  of  a  quo  ivarranto  will  lie  for  usurping  any  office,  whether 
created  by  charter  alone,  or  by  the  crown  with  the  consent  of  Parlia- 
ment, provided  the  office  be  of  a   public   nature,  and  a  substantive 
office,  not  merely  the  function  or  employment  of  a  deputy  or  servant 
held  at  the  will  and  pleasure  of  others;   for  with  respect  to  such  an 
enii^loyment  the  court  certainly  will  not  interfere,  and  the  information 
will  not  properly  lie."     The  fact  that  a  public  employment  is  held  at 
the  will  or  pleasure  of  another,  as  a  (k'i)ut y  or  servant,  who  holds  at  the 
will  of  his  principal,  is  held,  by  the  judges  of  the  Supreme  Court  in  an 
opinion  delivered  to  the  legislature  of  the  state  of  Maine,  to  distinguish 
a  mere  employment  from  a  public  office,  for  in  such  cases  uo  part  of  ^  ' 
the  state's  sovereignty  is  delegated  to  such  employes.     3  Greenleaf,    J 
481.     The  case  of  State  ex  rel.  v.  Brennan,  49  Ohio  St.  33,  is  not  at 
variance  with  these  views.     It  is  quite  clear  from  what  has  been  said 
that  the  "  Stationery  Store-keeper"  under  consideration  in  that  case 
was  a  public  officer.     He  was  charged  with  the  purchase   and  safe- 
keeping of  the  stationery  required  by  the  county.     The  judge,  in  de- 
livering the  opinion,  did  not  undertake  to  give  an  exhaustive  definition 
of  a  public  office;  but  did  say  that  "  it  is  safely  within  bounds  to  say 
that  where,  by  virtue  of  law,  a  person  is  clothed,  not  as  an  incidental 
or  transient  authority,  but  for  such  time  as  denotes  duration  ami  oon 


222  ATTORNEY    GENERAL    V.    JENNINGS. 

tinuance,  wiili-mclependeiitpQwer  to  control  the  property  of  the  public, 
^-^  or  with  functions  to  be  exercised  in  the  supposed~Tuterest  of  the  people, 
'\^^  the  service  to  be  compensated  by  a  stated  yearly  salary,  and  the  occu- 
pant having  a  designation  or  title,  the  position  so  created  is  a  public 
office."  Here,  and  throughout  the  opinion,  prominence  is  given  to  the 
fact,  that  a  public  officer  is  one  who  exercises,  in  an  independent 
capacity,  a  public  function  in  the  interest  of  the  people,  by  virtue  of 
law,  which  is  only  saying  in  another  form,  that  he  exercises  a  portion 
of  the  sovereignty  of  the  people  delegated  to  him  by  law. 

Applying  what  has  been  said  to  the  case  before  us,  and  it  clearly 
appears,  as  we  think,  that  the  firemen,  other  than  the  chief,  employed 
by  the  council  under  the  ordinance  of  June  23,  1897,  are  not  public 
officers.  They  have  no  control  of  the  fire  department,  nor  of  any  of  its^ 
property  for  any  purpose,  other  than  to  use  it  in  the  extinguishment 
orS"res  whenever  the  occasion  requires.  They  are  subject  on  all  occa- 
sions and  in  whatever  they  do  in  the  course  of  their  employment,  to 
the  direction  and  control  of  the  chief  of  the  department.  They  receive 
for  their  services  SoO.OO  per  month,  and  may  be  discharged  at  any 
time  by  the  council.  Hence  Jhey_are  simply  persons  in  the  employment 
of  the  fire  department,  and  are  not  pul)lic  officers  of  any  kind. 

^Ve  are,  however,  cited  to  some  cases  where  it  has  been  said,  as  a 
reason  for  the  non-liability  of  a  city  for  the  acts  of  its  fire  department, 
that  firemen  are  officers.  On  examination  it  will  be  found  that  this  is 
not  the  true  reason.  It  assumes  that  a  city  is  in  no  case  liable  for  the 
acts  of  its  officers.  But  this  is  not  true  in  all  cases.  A  city  is  liable 
for  the  wrongful  or  negligent  acts  of  its  sti-eet  commissioner.  It  is 
true  that,  in  this  instance,  it  is  made  the  duty  of  a  city  to  keep  its 
streets  in  repair  and  free  from  nuisances,  whilst,  in  this  state,  it  is  not 
required  to  establish  a  fire  department.  But  if  it  organizes  a  fire 
department,  and  levies  a  tax  for  its  support,  it  would  then  seem  to 
become  its  duty  to  see  that  it  is  properly  organized,  and  that  its 
agents  carefully  perform  their  duties  in  the  one  case  as  well  as  in  the 
other.  For  it  is  a  general  principle,  that,  though  a  person  may  not  be 
bound  to  do  a  particular  thing,  yet  if  he  voluntarily  undertake  to  do  it, 
he  is  bound  to  use  reasonable  care  and  diligence  in  its  performance, 
and  is  liable  in  damages  to  one  injured  from  his  failure  to  do  so. 
There  is  no  statutory  duty  in  cities  to  construct  sewers  ;  but  if  a  city 
does,  it  becomes  liable  to  a  party  injured  by  the  negligence  of  its 
officers  and  agents  in  constructing  and  maintaining  them.  Dillon, 
Municipal  Corporations,  4th  ed.,  section  980.  The  levying  of  the  tax 
and  assuming  to  act  in  the  premises  imposes  the  duty.  Hence  the 
true  reason  for  the  exemption  of  a  city  from  liability  for  the  acts  of 
its  firemen  is  most  probably  not  referable  to  the  fact  that  they  are 
officers  but  to  the  fact  that  it  would  be  unwise  to  burthen  the  tax- 
payers of  a  city  with  damages  resulting  from  the  negligence  of  its 
agents  in  such  cases;  in  other  words,  is  simply  a  limitation  suggested 
by  the  policy  of  the  law  on  the  maxim  respondeat  superior,  in  its  appli- 


STATE   V.    ROSE. 


223 


cation  to  cities  in  such  cases.  In  none  of  these  cases  was  any  effort 
made  to  determine  what,  in  general,  constitutes  a  public  oflicer.  In 
Dillon  on  Municipal  Corporations,  4th  ed.,  section  976,  it  is  said  : 
"■The  exemption  from  liability  in  these  and  the  like  cases,  is  upon  the 
ground  that  the  service  is  performed  by  the  corporation  in  obedience 
to  an  act  of  the  legislature ;  is  one  in  which  the  corporation,  as  such, 
has  no  particular  interest,  and  from  whicli  it  derives  no  special  benefit 
in  its  corporate  capacity ;  as  the  members  of  the  fire  department, 
although  appointed  and  employed  and  paid  by  the  city  corporation, 
are  not  the  agents  and  servants  of  the  city,  for  whose  conduct  it  is 
liable."  So  that  the  simple  fact  that  a  city  is  not  liable  for  the  acts  of 
its  fire  department  does  not  prove  tliat  all  of  its  members  are  neces- 
^ITTy  public  officers ;  and  may,  when  not  properly  employed,  be 
oustecl  from  their  employment  by  the  state,  as  usurping  on  its  author- 
it}^  in  a  proceeding  in  quo  loarranto.  We  are  therefore  led  to  the  con- 
clusion that  none  of  the  firemen  proceeded  against  in  this  case  can 
properly  be  termed  public  officers ;  they  are  clothed  with  none  of  the 
requisites  of  such  an  officer  ;  are  simply  in  the  employment  of  the  city 
as  laborers,  and  the  right  to  be  so  employed  cannot  be  challenged  by 
quo  loarranto.  The  fact  that  their  employment  requires  skill  and  ex- 
perience does  not  alter  the  case.  Skill  and  experience  do  not  consti- 
tute a  public  office  ;  they  are  simply  requirements  of  suitableness  for 
tlTe  place  ;  and  are  no  more  attributes  of  a  public  office  than  of  a 
private  employment. 

Writ  refused  and  petition  dismissed. 

v.»i»      y 

STATE   V.   ROSE. 
1906.     74  Kan.  262. 

^^  ^  Johnston,  C.  J.^  .  .  .  Rose  was  originally  elected  mayor  for  the 
,S^  term  of  two  years  ending  April  12,  1907;  for  official  misconduct  he 
was,  in  April,  1906,  removed  from  the  office  by  a  judgment  which  in 
terms  wholly  ousted  and  excluded  him  from  the  office  and  adjudged  that 
^>"'''^  he  do  not  intrude  into  it  during  the  term  for  which  he  was  originally 
^jt  .  elected.  In  open  disregard  of  this  judgment  he  is  now  in  possession 
'^w<*of  the  office,  and  is  assuming  to  exercise  its  functions  and  powers. 
*\Ar<The  judgment  is  not  ambiguous,  and,  if  it  is  valid,  the  defendant  is 
^  ^  unquestionably  in  contempt  of  the  court  which  rendered  it. 
0^  Some  of  his  attacks  on  the  judgment  would  have  been  entitled  to 

^i  more  consideration  if  they  had  been  made  before  it  was  finally  ren- 
.^-^..•v^dered.  This  proceeding  cannot  be  regarded  as  one  to  correct  irregu- 
'^  larities  or  errors.  The  judgment  was  rendered  in  a  quo  loarranto 
<^^\i  proceeding  wherein  the  court  had  unquestioned  jurisdiction,  and  unless 
-  "^^it  is  absolutely  void  it  is  not  open  to  attack.     It  is  first  assailed  on  the 

1  The  statement  of  the  pleadings  is  omitted.  —  Ed. 


/> 


224  STATE   V.    ROSE. 

ground  that  the  court  was  without  power  to  oust  the  defendant  in  a 
quo  warranto  proceeding,  because  other  and  adequate  remedies  existed 
for  getting  rid  of  unfaithful  mayors.  If  this  kind  of  an  objection 
were  available  after  judgment,  it  would  not  aid  the  defendant.  He 
calls  attention  to  the  statutes  making  official  misconduct  a  crime,  one 
of  the  penalties  of  which  is  the  forfeiture  of  the  office,  and  also  to  the 
case  of  The  State  ex  rel.  v.  Wilson^  30  Kan.  661,  2  Pac.  828,  which 
held  that  an  officer  could  not  be  removed  until  he  had  been  adjudged 
guilty  of  a  criminal  offense  defined  by  a  certain  statute.  That  decision 
was  based  upon  a  statute  which  provided  that  forfeiture  of  office  con- 
stituted a  part  of  the  penalty  of  the  offense  prescribed,  and  that  it  did 
not  occur  until  a  conviction  was  had.  In  that  case  the  court  recog- 
nized that  the  legislature  had  the  power  to  provide  for  a  forfeiture  for 
misconduct,  independent  of  any  criminal  prosecution,  but  held  that  it 
had  not  done  so  in  the  statute  then  under  consideration.  The  statute 
under  which  the  present  action  was  brought  authorizes  not  only  crimi- 
nal proceedings  but  expressly  provides  for  the  removal  of  the  offend- 
ing officer  by  a  civil  action.  Gen.  Stat.  1901,  §  2462.  This  remedy, 
it  will  be  observed,  is  not  incidental  to  the  criminal  proceeding,  but  is 
an  additional  and  independent  one.  The  State  ex  rel.  v.  Foster,  G2 
Kan.  14,  3  Pac.  534.     The  violations  of   the  law  by  the  officer  are  not 


only  public  offenses,  but  in  coniniittiiig  tbt/ui  he  forfeits  iiis  rightto 
the  office,  and  this  forfeiture  may  be  judicially  declared  in  a  quo  war- 
ranto  proceeding. 

The  judgment  cannot  be  deemed  to  be  invalid  because  of  the  resig- 
nation of  Rose  just  before  its  rendition.  The  issues  were  joined,  tes"-' 
timony  had  been  taken,  and  the  case  was  ripe  for  trial  before  the 
resignation,  and  the  defendant  could  not  then,  by  surrendering  the 
office,  divest  the  court  of  jurisdiction  nor  thwart  the  purposes  of 
the  proceeding.  The  public  had  an  interest  in  the  action,  and  the 
judgment  to  be  rendered  was  of  no  less  consequence  to  it  than  to  the 
individual  interests  of  the  defendant.  The  judgment  of  ouster,  as  Mr. 
High  has  said,  "  is  not  at  all  dependent  upon  whether  the  respondent 
does  or  does  not  claim  a  right  to  exercise  the  office  or  franchise  in  con- 
troversy ;  the  question  being  whether  he  has  done  any  act  which 
necessarily  implies  a  claim  to  its  exercise.  And  if  such  act  can  be 
shown,  judgment  of  ouster  will  be  given,  notwithstanding  the  usurpa- 
tion has  ceased  before  the  trial.  -So  when  a  statute  gives  the  prevail- 
ing party  in  proceedings  upon  a  quo  loarranto  information  the  right  to 
costs  absolutely,  the  court  will  give  judgment  of  ouster,  notwithstand- 
ing the  information  is  entirely  fruitless,  the  term  of  office  having  long 
since  expired."  (High,  Extra.  Leg.  Rem.,  3d  ed.,  §  754.)  In  The 
State,  etc.,y.  McDaniel  et  al,  22  Ohio  St.  254,  368,  the  Supreme  Court 
of  Ohio  held  that  resignation  did  not  constitute  a  defense  to  an  infor- 
mation in  quo  warranto,  and  that  it  was  not  within  the  power  of  the 
defendant  in  cases  of  this  character  to  render  the  proceedings  ineffect- 
ual by  successive  resignations.     (See,   also,  Attorney-general  ex  rel. 


STATE  V.    ROSE,  225 

Robinson  v.  Johnson,  63  N.  H.  622,  (7  Atl.  381)  ;  Hunter  v.  Chandler, 
45  Mo.  452,  455  ;  The  King  v.   Warlow,  2  M.  &  S.  [Eng.  K.  B.]  75.) 

There  remains  the  question,  and  in  fact  the  only  substantial  question 
in  the  ease,  whether  there  was  power  in  the  court  to  render  an  effectual 
judgment  ousting  the  defendant  from  the  office  for  the  remainder  of 
the  term  to  which  he  had  been  chosen.  By  the  terms  of  the  judgment 
he  was  not  only  ousted  for  the  moment  but  for  the  entire  term.  While 
the  judgment  expressly  deprives  the  defendant  of  any  right  for  the 
balance  of  the  term  to  the  office  forfeited  for  his  misconduct,  it  is  not 
certain  that  it  is  any  more  effective  than  would  have  been  a  general 
judgment  of  ouster.  If  the  unlawful  acts  pleaded  and  proved  operated 
to  forfeit  the  office  for  the  term  to  which  Rose  was  elected,  a  judgment 
in  general  terms  declaring  a  forfeiture  would  probably  take  from  him 
all  that  he  had  forfeited.  What  was  involved  in  the  proceeding,  and 
of  what  was  the  defendant  deprived  by  the  ouster?  It  was  the  office 
of  mayor,  with  its  rights  and  privileges.  The  office  is  a  trust  conferred 
by  public  authority,  for  a  public  purpose,  and  for  a  definite  time.  Mr." 
Jtistfce  Swayne  said:  "An  office  is  a  public  station,  or  employment, 
conferred  by  the  appointment  of  the  government.  The  term  embraces 
the  ideas  of  tenure,  duration,  emolument,  and  duties."  {United  States 
v.  Hartwell,  73  U.  S.  385,  393,  18  L.  Ed.  830  )  In  the  case  of  In  the 
Matter  of  Oaths  to  be  taken  by  Attorneys  and  Counselors,  20  Johns. 
(N.  Y.)  491,  an  "  office  "  was  defined  to  be  "  an  employment  on  behalf 
of  the  government,  in  any  station  or  public  trust,  not  merel}'  transient, 
occasional  or  incidental."  (Page  493.)  In  defining  "public  office'" 
the  Court  of  Appeals  of  New  York  said  :  "  It  means  a  right  to  exercise 
generally,  and  in  all  proper  cases,  the  functions  of  a  public  trust  or 
employment,  .  .  .  and  to  hold  the  place  and  perform  the  duty /or 
the  term  and  by  the  tenure  prescribed  by  law."  (Matter  of  Hathaway, 
71  N.  Y.  238,  244.) 

The  office  of  mayor,  which  was  conferred  on  the  defendant  at  the 
general  city  election  of  1905,  was  not  a  transient  or  occasional  trust. 
Theofficei_Hith  it§  rights  and  privileges,  was  given  to  him  for  a  fixetH 
time.  ,  It  was  a  two-year  trust ;  an  entire  thing.  It  has  been  said  that, 
"  in  legal  idea,  an  office  is  an  entity,  and  may  exist  in  fact,  though  it 
be  without  an  incumbent."  (^People  v.  Stratton,  28  Cal.  382,  388.) 
The  same  court  later  said  that  in  legal  contemplation  "  each  term  of 
an  office  is  an  entity  separate  and  distinct  from  all  other  terms  of  the 
same  office."  {Thurston  v.  Clark,  107  Cal.  285,  288,  40  Pac.  435). 
(See,  also,  Wardlow  v.  Mayor,  etc..  City  of  New  York,  19  N.  Y.  Supp. 
6,  7  ;  State  of  Iowa  v.  Welsh,  109  Iowa,  19,  79  N.  W.  369.) 

The  right  to  exercise  the  functions  of  the  office  of  mayor  and  to  enjoy 
its  privileges  Tor  the  two-year  term  was  an  entity  conferred  on  the.de£ 
fendaiit,  and  it  was  that  which  was  taken  from  him  in  the  quo  icarranto 
proceeding.  The  resignation  or  the  removal  of  an  officer  during  his  term 
and  tiie  election  or  appointment  of  a  successor  do  not  divide  the  term  nor 
create  a  new  and  distinct  one.     In  such  a  case  the  successor  is  filling 


1 


226  STATE   V.   ROSE. 

out  his  predecessor's  term ;  and  when  the  defendant  reentered  the 
office  and  undertook  to  exercise  its  duties  he  was  simply  serving  a  por- 
tion of  the  very  term  which  the  court  had  decided  that  he  was  unfit  to 
hold.  Since  under  the  law  he  forfeited  and  was  ousted  from  the  right 
to  occupy  the  office  for  the  remainder  of  the  term,  no  subsequent  elec- 
tion or  appointment  could  restore  to  him  that  which  he  was  adjudged 
to  have  forfeited  and  lost.     The  electors  of  the  city  are  as  much  bound 

.tf-^         |by  the  law  and  the  judgment  rendered  in  pursuance  of  the  law  as~tTieif ' 
.'representatives  and  officers,  and  the  special  election  did  not  warrant 
■  the  defendant  in  ignoring  or  violating  the  judgment  rendered  under 
the  law. 

In  State  of  Iowa  v.  Welsh^  109  Iowa,  19,  79  N.  W.  369,  the  supreme 
court  of  Iowa  went  so  far  as  to  hold  that  an  officer  might  be  removed 
during  the  term  for  which  he  had  been  reelected  for  official  misconduct 
or  neglect  of  duty  during  his  previous  term.  After  remarking  that 
the  object  of  the  proceeding  of  removal  from  office  is  to  rid  the  com- 
munity of  a  corrupt,  incapable  or  unworthy  official,  it  was  said : 

"  The  commission  of  any  of  the  pi'ohibited  acts  the  day  before  quite 
as  particularly  stamps  him  as  an  improper  person  to  be  entrusted  with 
the  performance  of  the  duties  of  the  particular  office  as  though  done 
the  day  after.  The  fact  of  guilt  with  respect  to  that  office  warrants  the 
conclusion  that  he  may  no  longer  with  safety  be  trusted  in  discharging 
his  duties."     (Page  23.) 

It  is  not  necessary  to  go  to  that  extent  in  this  case,  but  certainly 
tlie  misconduct  of  which  the  defendant  was  found  guilty  stamps  him  as 
one  not  entitled  to  be  entrusted  with  the  duties  of  the  particular  office 
forfeited  during  the  remainder  of  the  term.  The  case  of  State  v. 
Jersey  Citi/,  25  N.  J.  Law,  536,  appears  to  hold  a  contrary  view ;  but 
a  case  more  nearly  in  point,  and  which  is  in  accord  with  our  judgment, 
is  State  ex  rel.  v.  DaH,  bl  Minn.  261,  59  N.  W.  190.  There  a 
county  treasurer  was  removed  in  a  proper  proceeding  for  the  misap- 
^.,v-  propriation  of  public  funds.     Afterward  the  board  of  county  commis- 

5r  '  M  sioners,  which  had  authority  to  fill  the  vacancy,  elected  him  to  fill  out 

the  term.     The  question  arose  whether  there  was  power  in  the  board 

\2/^'        to  reinvest  him  with  the  office  in  that  manner.     In  deciding  that  there 
r(      ''was  not  the  Supreme  Court  of  Minnesota  said  : 

"  The  removal  proceedings  cannot  be  nullified  or  reversed  in  that 
manner.  Such  removal  proceedings  are  not  merely  for  the  purpose  of 
ousting  the  peFson  TioFding  the  office  ;  they  include  a  charge  that  he  has 
forfeited  his  qualification  for  the  office  for  the  remainder  of  the  term. 
They  are  brought  to  declare  a  forfeiture  of  a  civil  right,  his  eligibility, 
his  qualification  to  hold  that  office  for  tlie  rest  of  that  term.  The  pro- 
ceeding is  not  brought  for  his  removal  from  a  day  or  a  week  or  a 
month  of  his  term,  but  from  the  whole  of  the  remainder  of  his  term. 
.  Nothing  less  is  involved  in  the  proceedings.  Whether  the 
voters  at  the  polls  could  condone  the  offense  by  which  he  forfeited  his 
office  it  is  not  necessarj^  here  to  decide.  We  are  of  the  opinion  that 
the  county  commissioners  could  not  do  so."     (Page  2G3.) 


&;- 


>a^ 


STATE    V.    ROSE.  227 

At  the  argument  the  question  was  mooted  whether  a  county  attorney 
who  had  been  removed  from  office  could  be  reappointed  during  the 
term.  The  statute  authorizing  removal  would  serve  little  purpose  if 
the  district  judge  could  ap[)oint  the  unfaithful  officer  for  the  term  for- 
feited and  thus  again  invest  him  with  the  office  and  the  opportunity  to 
continue  the  violations  of  duty  and  of  the  law.  Suppose  a  county 
clerk  who  was  engaged  in  peculation  with  the  connivance  of  the  board 
of  county  commissioners  was  removed  from  office  :  the  board,  whitji 
has  the  power  to  fill  the  vacancy,  might  be  willing  to  give  the  defaulter 
a  new  lease  of  power  to  continue  his  frauds  against  the  public  until  the 
end  of  the  term,  but  to  allow  it  to  be  done  would  be  trifling  with  jus- 
tice.    No  such  purpose  can  reasonably  be  imputed  to  the  legislature. 

Counsel  for  the  defendant  were  inclined  to  concede  that  an  officer 
removed  for  dereliction  of  duty  could  not  be  reappointed  to  fill  the 
vacancy,  but  contended  that  a  different  rule  obtains  where  provision  is 
made  for  filling  the  vacancy  by  election.  No  room  is  seen  for  a  dis- 
tinction between  an  a[)p!>intnu'ut  and  an  election.  The~protection  dl 
the  public  is  involved  in  the  proceeding  and  judgment.  Nothing  in  the 
statute  suggests  the  electors,  even,  can  condone  the  misfeasance,  re- 
vive the  forfeited  right,  or  limit  the  effect  or  enforcement  of  a  judgment 
of  ouster. 

It  is  said  that  this  proceeding  involves  the  title  to  an  office,  which 
can  only  be  questioned  in  a  direct  proceeding,  and  that  a  contempt 
proceeding  cannot  be  transformed  into  a  quo  tvarranto  action.  The 
determination  of  the  title  to  the  office  is  not  directly  drawn  in  question 
in  this  proceeding.  The  real  inquiry  is,  Has  the  defendant  violated 
the  judgment  rendered?  That  involves  the  scope,  and  effect  of  the 
judgment  and  whether  the  defendant  has  intruded  into  the  office  and 
is  doing  that  which  the  judgment  forbids.  The  right  to  the  office  is 
only  incidental  to  the  main  question  :  whether  he  is  acting  in  disobedi- 
ence and  contempt  of  the  judgment  of  the  court.  It  is  conceivable 
that  a  person  removed  from  office  might,  for  some  purposes,  be  re- 
garded as  a  de  facto  officer  and  yet  be  in  contempt  of  a  court  wiiich 
prohibited  him  from  occupying  the  office.  An  ousted  officer  might 
again  and  again,  in  some  illegal  way,  gain  possession  of  the  office  and 
such  recognition  in  it  as  would  give  validity  to  his  acts,  but  it  would 
hardly  be  contended  that  the  only  w-ay  by  which  the  state  could  meet 
such  contumacy  and  enforce  the  court's  judgment  would  be  to  bring 
repeated  quo  ivarranto  proceedings. 

The  contention  that  to  deprive  the  defendant  of  the  right  to  hold  the 
office  for  the  remainder  of  the  term  is  to  take  away  a  right  from  him 
without  due  process  of  law  is  not  well  founded.  He  is  only  made  to 
suffer  the  i)enalty  imposed  for  misconduct  in  office  and  violation  of  law. 
The  oftlce  is  created  by  statute.  The  grounds  for  forfeiture  are  pre- 
scribed I)}'  statute,  and  the  statute  provides  the  method  l)y  which  the 
forfeiture  is  declared.  The  defendant  has  no  vested  right  to  the  oftlce, 
and  especially  none  which  may  not  be  forfeited  and  lost  by  misfeas- 


228  BUCK    V.    EUREKA. 

auce.  Having  violated  the  statute,  he  must  suffer  the  penalty  which 
the  statute  prescribes.  Having  disobeyed  and  violated  the  judgment 
lawfully  rendered  and  still  in  force,  he  is  in  contempt  of  this  court, 
and  is  therefore  adjudged  to  pay  a  fine  of  §1000  and  the  costs  of  this 
proceeding ;  and,  if  the  fine  and  costs  be  not  paid  within  twenty  days, 
he  shall  be  committed  to  the  jail  of  Shawnee  couaty  until  they  are 
paid. 

All  the  Justices  concurring.  I 

_  p^         \^^\^       BUCK  V.    EUREKA. 


^^ 


^- 


1895.     109  Cal.  504. 

Action  to  recover  compensati(iu  for  legal  services  rendered  to  the 

\   ■■  ^      city  of  Eureka.     The  defendant  offered  evidence  to  show  that  plaintiff 

\  hacl^een  elected  and  qualified  and  had  acted  as  city  attorney  for  the 

period  during  which  the  services  were  rendered.     This  evidence  was 

rejected,  and  judgment  given  for  plaintiff,  and  defendant  appealed.^ 

Henshaw,  J.  .  . .  There  can  be  no  question  upon  this  evidence,  assum- 
ing for  the  moment  the  existence  of  the  ofHce,  but  that  plaintiff  was 
0^  not  only  de  facto  city  attorney,  but  that  he  was  the  regularly  ap- 
pointed, qualified,  and  acting  city  attorney,  a  de  jure  officer  charged 
with"ail  the  duties  and  entitled  to  all  the  emoluments  of  the  office. 
There  can  be  no  better  proof  of  the  acceptance  and  holding  of  an 
office  than  the  qualification  of  the  officer  and  his  drawing  of  the  salary. 
Here,  the  plaintiff  was  appointed  as  city  attorney,  filed  his  bond  as 
city  attorney,  took  the  oath  of  office  as  city  attorney,  and  drew  the 
fixed  salary  of  city  attorney,  all  duly  and  regularly  as  required  by  law 
and  the  ordinances  of  the  city. 

Nor  can  plaintiff  be  heard  to  say  (still  assuming  the  existence  of  the 
office)  that  his  contract  with  the  city,  or  his  understanding  with  the 
council,  imposed  upon  him  other  or  different  or  lesser  duties  than 
those  which  by  law  he  was  obliged  to  perform.  He  cannot,  for  ex- 
ample, be  heard  to  say,  as  here  he  undertakes  to  do,  in  the  face  of  the 
Aj-**"'^'""  ordinance  fixing  his  compensation,  that  his  understanding  with  the 
council  was  that  they  were  to  give  him  twenty-five  dollars  a  month  as 
a  "  retainer,"  a  "  stipend,"  and  were  to  pay  him  "  extra  for  all  impor- 
tant duties,  particularly  business  in  the  sujierior  court  or  business  in 
the  higher  courts."  It  was  not  within  the  power  of  the  plaintiff,  or  of 
the  council,  to  modify  by  convention  the  duties  which  by  law  were 
made  to  pertain  to  the  office  of  cit}^  attorney.  Pol.  Code,  sec.  4391. 
And  the  plaintiff,  after  having  qualified,  filed  his  bond,  and  taken  his 
oath  to  perform  the  duties  of  the  office,  and  drawn  the  salary  pertain- 
ing thereto,  will  not  be  permitted  to  assert  that  the  duties  he  swore  to 

1  This  short  statement  of  facts  is  substituted  for  that  of  the  Court.  —  Ed. 


BUCK   V.    EUREKA. 


229 


perform  were  not  those  the  performance  of  which  the  law  made  obliga- 
tory upon  him. 

The  contention  that  he  was  not  city  attorney  cannot  then  be  based 
upon  any  defect  in  the  machinery  of  appointment,  nor  upon  plaintiff's 
refusal  with  proper  formalities  to  accept  the  appointment. 

It  is  claimed  to  rest  upon  the  fact  that  the  council,  notwithstanding 
its  repeated  recognition  of  the  existence  of  the  office,  never  in  fact 
created  it,  and  that,  therefore,  it  never  existed. 

And  the  argument  is  that  the  council  had  power  to  create  the  office. 
Pol.  Code,  sec.  4408.  That  they  were  required,  if  they  created  it,  to 
do  so  by  ordinance.  Pol.  Code,  sec.  4369.  That  the  mode  is  the 
measure  of  their  power,  and  that  no  ordinance  was  produced  wherein 
and  whereby  the  common  council  of  the  city  of  Eureka  did  ordain  that 
the  office  of  city  attorney  of  the  city  of  Eureka  is  hereby  created. 

It  is  a  general  rule  founded  upon  the  dictates  of  public  policy  that 
the  acts  i)f  a  di^  fii<:iij  ollieer  are  valid,  and  that  those  \Yho  deal  with 
suciriiii  ollieer  aie  proteeted.  The  public  is  not  required  to  know  the 
terms  and  tenure  upon  which  one  openly  holding  and  claiming  the 
right  to  hold  a  public  office  maintains  his  position  ;  nor  is  any  person 
who  has  dealt  with  such  an  officer  to  suffer  loss  if  the  tenure  should 
prove  illegal.  So,  likewise,  it  is  the  general  rule  upon  grounds  of 
plain  justice  and  public  policy  that  a  de  facto  officer  is  forever  estop- 
ped in  civil  or  criminal  actions  from  den^ang  that  he  holds  the  office, 
and  from  escaping  any  of  the  responsibilities  which  attach  to  his  in- 
cumbency. But  the  further  rule  is  that  the  law  as  to  de  facto  officers 
applies  only  where  there  is  a  da  jure  office  ;  the  idea  of  a  de  fncto  officer 
"being  necessarily  founded  upon  the  conception  of  a  dejure  office.  A 
de  jure  office  is  one  having  a  legal  existence,  or,  rather,  one  having  an 
existence  recognized  by  law. 

While  it  is  certainly  impossible  to  conceive  of  an  officer,  either  de 
facto  or  dejure^  filling  or  attempting  to  fill  a  nonexisting  office,  there  is 
a  marked  and  well-recognized  distinction  between  such  nonexisting 
offices  and  those  which,  while  having  an  irregular  or  merely  potential, 
or  in  some  instances  even  an  illegal  existence,  yet  do  exist,  and  are 
recognized  by  the  law. 

Of  offices  having  an  illegal  existence  —  which  are  nevertheless  rec- 
ognized —  the  government  of  a  state  in  rebellion,  and  of  a  municipality 
acting  as  such  without  legal  authority,  are  conspicuous  examples. 

The  governpient  of  a  state  in  rebellion  and  all  offices  thereunder  are 
absolutely  illegal,  yet,  upon  strong  and  plain  grounds  of  public  policy 
the  government  and  offices  are  recognized  by  law,  and  the  incumbents 
are  treated  as  de  facto  officers.  "  In  such  a  case  the  acts  of  a  de  facto 
executive,  a  de  facto  judiciary,  and  of  a  de  facto  legislature  must  be 
recognized  as  valid.  But  this  is  required  by  political  necessity." 
Hildreth  v.  M'Intire,  1  J.  J.  Marsh.  207;  19  Am.  Dec.  62. 

So  a  municipal  corporation,  acting  under  color  of  the  law,  may  have 
no  legal  existence,  and,  consequently,  no  legal  municipal  offices,  yet 


■X^- 


^A\ 


230 


BUCK   V.   EUREKA, 


^ 


^^^ 


a 


such  a  corporation  has  still  an  existence  recognized  by  law,  and  upon 
plain  grounds  of  public  policy  the  question  of  its  legal  existence  should 
be  raised  only  by  tlie  state  itself  upon  quo  ivarranto.  Cooley's  Cons- 
titutional Limitations,  254;  Town  of  Geneva  \ .  Cole,  61  111.  397;  St. 
Louis  V,  Shields,  62  Mo.  247  ;   State  v.  Carr,  5  N.  H.  367. 

In  some  states  indeed  it  is  the  established  rule  that  officers  filling 
oifices  created  by  unconstitutional  laws  are  nevertheless  de  facto  officers 
until  under  direct  proceedings  the  act  has  been  declared  unconstitu- 
tional. Thus,  in  Burt  v.  Wi7wna,etG.,  7?.  B.  Co.,  81  Minn.  472, it  was 
held  that  the  municipal  court  of  Mankato  was  a  de  facto  court,  and 
that  there  can  be  a  de  facto  office  under  an  unconstitutional  act  creat- 
ing it  until  the  act  is  declared  void.  In  the  case  of  Trumbo  v.  People, 
15  111.  561,  a  school  district  had  been  illegally  established  ;  the  supreme- 
court  of  Illinois  reviewing  the  case  in  a  later  opinion  (Leach  v.  People, 
122  111.  420)  say  :  "So  far  as  that  alleged  district  was  concerned  there 
was  no  such  legal  district,  and  there  was  no  dejure  office  of  school  direc- 
tor of  that  alleged  district."  Yet,  upon  a  proceeding  to  collect  a  tax 
the  tax  was  sustained,  it  being  held  that  the  school  directors  were  officers 
de  facto,  and  that  in  collateral  proceedings  the  legality  of  the  forma- 
tion of  the  district  could  not  be  inquired  into.  And  in  Common- 
icealth  v.  McComhs,  56  Pa.  St.  436,  it  is  said  :  "  An  act  of  the  assembly, 
even  if  it  be  unconstitutional,  is  sufficient  to  give  color  of  authority  to 
the  person  acting  under  it." 

These  decisions  are  in  obvious  conflict  with  the  authority  of  the 
great  leading  cases  of  State  v.  Carroll,  38  Conn.  449,  9  Am.  Rep.  409, 
and  Nort07i  v.  Shelby  Count'/,  118  U.  S.  425,  in  the  latter  of  which 
Field,  J.,  explains  that,  while  there  are  many  cases  deciding  that  a 
person  holding  an  office  under  an  unconstitutional  law  is  a  de  facto 
officer,  in  every  one  it  will  be  found  that  there  was  a  legal  office  and 
that  the  unconstitutional  law  went  only  to  the  mode  or  manner  of  fill- 
ing it.  And  they  are  likewise  in  conflict  with  the  rule  in  this  state 
declared  in  People  v.  Toal,  85  Cal.  333.  They  are  not  here  cited  in 
commendation  or  approval,  liul  as  instructive  examples  of  the  lengths 
to  which  those  courts  have  felt  compelled  to  go  in  carrying  out  what 
they  conceived  to  be  the  plain  mandate  of  public  policy. 

When,  however,  we  come  to  consider  the  doctrine  as  applied  to 
offices  having  an  irregular  or  potential  existence  (as  distinguished 
from  a  noJaexTsting  office,  or  one  void  in  its  creation),  the  cases 
are  numerous  and  uniform  in  treating  the  incumbents  of  such  offices 
as  de  facto  officers. 

In  Gihb  V.  Washivgton,  1  McAll.  430,  dealing  with  the  question  of 
the  creation  of  the  office  of  appraiser,  the  court  say:  "If  such  an 
office  has  been  even  colorably  created,  then  any  irregularity  which 
does  not  render  the  cre'ttion  of  the  office  void  cannot  be  availed  of.'* 

In  Li  re  Ah  Lee,  6  Saw.  410,  the  constitution  of  Oregon  provided 
that  when  the  population  reached  two  hundred  thousand  the  legislatu  -e 
should  district  the  state  into  designated  circuits,  and  provided  for  the 


BUCK  V.    EUREKA.  231 

election  of  judges  to  the  circuit  courts  therein.  The  legislature  passed 
the  act  before  the  state  attained  the  requisite  population,  and  before 
election  the  governor,  without  authority,  appointed  the  judge  whose 
act  was  under  review.  The  court  held  that  admitting  the  act  to  be 
unconstitutional  and  the  appointment  of  the  governor  to  be  invalid, 
still  the  judge  was  a  judge  de  facto,  since  the  otiice  in  effect  was 
created  by  the  constitution. 

In  Carleton  v.  People,  10  Mich.  250,  the  county  officers  were  elected 
before  the  law  creating  the  offices  went  into  effect.  They  were  held 
to  be  de  facto  officers.  Tliough  there  were  no  legal  offices  in  existence 
at  the  time,  still  the  offices  were  created,  and  had  a  potential  exist- 
ence. And  the  court  in  distinguishing  between  such  offices  and  non- 
existent offices  aptly  says:  "Where  the  law  negatives  the  idea  that 
there  can  be  a  legal  incumbent,  any  one  assuming  to  act  assumes  what 
any  one  is  bound  to  know  is  not  a  legal  office." 

In  Yorty  v.  Paine,  Q'2  \Yis.  154,  the  legislative  act  creating  the 
town  of  Vwih  River  provided  that  the  electors  should  meet  upon  the 
first  Tuesday  of  the  following  April  (April  4th),  and  elect  town 
officers,  but  the  act  itself  did  not  become  a  law  until  four  days  after- 
ward —  April  8th.  The  potential  existence  of  the  town  was  recog- 
nized as  sufficient  for  holding  the  election,  and  the  officers  were 
declared  to  be  de  facto,  though  elected  without  authority  of  law  to 
offices  then  having  no  more  than  a  potential  existence. 

In  Folder  v.  Bebee,  9  Mass.  231,  6  Am.  Dec.  62,  the  legislature  had 
created  a  new  county  and  the  offices  thereof.  The  governor  appointed 
officers  before  the  law  went  into  effect.  It  was  held  that  their  acts 
were  binding  as  de  facto  officers,  though  the  appointments  themselves 
were  afterward  declared  void  by  the  same  court  when  the  question 
was  presented  upon  direct  attack.  Commomvecdth  v.  Foider,  10  Mass. 
291.  Here  too,  therefore,  the  potential  existence  of  the  office  was 
recognized. 

In  Leach  v.  People,  supra,  an  unconstitutional  law  regulating  town- 
ship organizations  provided  for  the  number  of  members,  mode  of  elec- 
tion, etc.,  of  the  board  of  supervisors,  and  under  this  law  a  board  was 
selected  whose  acts  were  under  consideration.  It  was  held  that  not- 
withstanding the  invalidity  of  the  law,  there  was  still  "such  a  legal 
official  body  known  to  the  law  as  the  board  of  supervisors  of  Wayne 
county,"  and  the  acting  board,  though  in  number  and  in  mode  of  selec- 
tion illegal,  was  upheld  as  a  de  facto  body. 

The  case  of  Smiili  v.  Lynch,  29  Ohio  St.  261,  is  nearly  a  parallel 
case  with  the  one  at  bar.  The  legislature  of  Ohio  authorized  villages 
and  towns  to  establish  boards  of  health  and  appoint  members.  The 
village  of  West  Cleveland,  by  a  void  ordinance,  attempted  to  do  this. 
The  members  appointed  qualified,  and  entered  upon  the  discharge  of 
their  duties,  and  were  accepted  and  regarded  by  the  public  as  such 
members.  The  opinion  of  the  court,  delivered  by  Welch,  C.  J.,  is  as 
follows:  "  The  questions  argued  by  counsel  are  :  1.    Had  the  superior 


232 


BUCK   V.    EUREKA. 


.  0 


court  jurisdiction?  2.  Are  the  requirements  of  the  statute  as  to  the 
manner  of  passing  the  ordinance  mandatory,  or  are  they  merely  direc- 
tory? 3.  If  these  requirements  are  mandatory,  are  the  persons  so 
acting  to  be  regarded  as  a  board  of  health  de  facto  ?  We  are  satisfied 
that  the  last  named  of  these  questions  must  be  answered  in  the  atfirma- 
tive.  It  is  unnecessary,  therefore,  to  consider  the  first  and  second 
questions.  In  other  words,  we  think  that,  under  the  circumstances, 
the  board  is  to  be  regarded  as  a  board  de  facto.  Whether  it  was  a 
board  de  jure  and  whether  the  superior  court  had  jurisdiction  of  the 
case  became,  therefore,  immaterial  questions.  It  is  claimed  by  coun- 
sel for  the  plaintiff  that  this  is  not  a  case  where  an  office  has  been  filled 
and  its  duties  performed  by  parties  not  legally  appointed  or  qualified, 
but  a  case  where  there  luas  no  office  to  be  JilUxl.  We  do  not  so  under- 
stand the  law.  The  statute  (60  Ohio  Laws,  200)  creates  the  office.  It 
authorizes  the  council  to  '  establish '  the  board,  and  to  fill  it  by  ap- 
pointment. True,  until  the  council  act  in  the  premises  it  is  a  mere 
potentiality  in  their  hands ;  yet  it  is  none  the  less  an  office.,  known  to 
the  law.  Where  the  council  assume  to  establish  the  board  under  the 
law  and  to  appoint  its  members,  there  is  no  good  reason  why  an  irreg- 
ularity or  illegality  in  the  act  of  establishing  the  office  any  more  than 
an  irregularity  or  illegality  in  the  appointment  of  the  officers  should  be 
held  as  rendering  the  acts  of  the  officers  void,  and  themselves  mere 
trespassers.  The  reasons  — -  the  considerations  of  public  policy  — 
which  exist  in  one  case,  exist  equally  in  the  other.  It  is  enough  that 
the_office_is  one  provided  for  by  law,  and  that  the  partie_s  have  the 
color  of  aj5pointment,  assumed  to  be  and  act  as  such  officers,  and  that 
they  are  accepted  and  acknowledged  by  the  public  as  such  to  the  ex-^ 
clusiorTof  all  others.  Such  was  the  case  here.  There  was  both  the 
color  and  iho.  fact  of  office," 

The  office  under  consideration  was  given  a  potential  existejice  by  the 
acts  of  the  logi.slature  in  the  sections  of  the  code  above  quoted.  The 
plaintiff  having  accepted  the  appointment  to  it,  and  received  tlie  emol- 
uments of  if,"l8  estopped  from  endeavoring  to  show  to  his  own  ad- 
vantage thai  the  council  did  not  follow  a  prescribed  mode  in  perfecting 
that  potential  existence.  It  was  therefore  error  for  the  trial  court  to 
strike  out  "the  admitted  evidence. 

It  does  not  seem  to  be  disputed  that  if  plaintiff's  services  in  the  case 
of  Wing  Hing  v.  City  of  Eureka,  supra,  were  such  as  under  his  office 
he  was  in  duty  bound  to  perform,  his  contract  with  the  council  would 
be  void  as  an  attempt  to  increase  his  compensation.  And  indeed  no 
question  can  arise  upon  this  point.  It  is  definitely  settled  bj'  the  lan- 
guage of  the  constitution  in  the  first  place  (Const,  art.  XI,  sec.  9),  and 
in  the  second  place,  even  in  the  absence  of  such  a  provision,  such  a 
contract  would  be  declared  void  upon  grounds  of  public  policy.  "  It 
is  a  well-settled  rule  that  a  person  accepting  a  public  office  with  a  fixed 
salary  is  bound  to  perform  the  duties  of  the  office  for  the  salary.  He 
cannot  legally  claim  additional  compensation  for  the  discharge  of  these 


BUCK  V.    EUREKA.  233 

duties,  even  though  the  salary  l)e  a  very  inadequate  remuneration  for 
the  services.  .  .  .  Whenever  he  considers  the  compensation  inadequate 
he  is  at  liberty  to  resign.  The  rule  is  of  importance  to  the  public. 
To  allow  changes  and  additions  in  the  duties  properly  belonging  or 
which  may  be  attached  to  an  office  to  lay  the  foundation  for  extra 
compensation  would  introduce  intolerable  mischief.  The  rule,  too, 
should  be  strictly  enforced."  Dillon  on  Municipal  Corporations,  4th 
ed.,  sec.  233;  Mechem  on  Public  Officers,  sees.  324-76. 

The  contention  is,  however,  that  these  services  were  not  among 
those  whose  performance  is  enjoined  on  the  city  attorney,  and  herein 
plaintiff  relies  upon  the  case  of  Herrington  v.  Santa  Clara  County, 
44  Cal.  496. 

As  the  law  stood  when  that  decision  was  rendered,  the  district  at- 
torney was  entitled  to  receive  as  compensation  ten  per  cent  of  all 
money  recovered  by  him  for  the  county  in  any  action.  The  county 
supervisors,  ignoring  the  district  attorney,  authorized  other  attorneys 
to  bring  suit  without  the  county  for  the  recovery  of  a  large  sum  of 
money.  Recovery  was  had  in  the  action  and  the  district  attorney 
sued  to  recover  his  percentage.  The  law  made  it  the  duty  of  the  dis- 
trict attorney  to  prosecute  all  actions  for  the  recovery  of  debts,  etc., 
and  to  defend  all  suits  brought  against  his  county.  Pol.  Code,  sec. 
4256.  The  district  attorney  was  not  denying  that  it  was  his  duty 
to  prosecute  this  suit ;  but  to  the  contrary,  insisted  that  it  was  his 
duty.  The  defendant  county  never  claimed  that  it  was  not  the  district 
attorney's  duty  to  prosecute  the  suit,  but  insisted  that  the  duty  was 
not  exclusively  imposed  upon  and  the  right  not  exclusively  vested  in 
him,  but  that  the  supervisors  could,  if  they  saw  fit,  engage  other 
counsel  to  perform  the  service,  as  in  many  cases  special  counsel  are 
employed. 

The  language  of  the  court  in  its  opinion,  therefore,  while  not  obiter^ 
was  not  addressed  to  an}'  contention  raised  by  the  parties.  The  de- 
cision of  the  court  was  by  a  bare  majority.  Chief  Justice  "Wallace 
being  disqualified,  and  Justice  Rhodes  expressing  no  opinion.  It  was 
based  upon  two  grounds  ;  the  second,  which  is  argued  at  length,  hold- 
ing that  as  the  district  attorney  had  not  collected  the  money,  he  was 
not  entitled  to  his  commission;  and  the  first,  which  is  not  argued, 
being  a  declaration  to  the  effect  that  it  was  "  not  a  duty  enjoined  upon 
the  district  attorney  by  law  to  prosecute  or  defend  civil  actions  in 
which  the  county  is  intererested  which  are  pending  in  any  other  county 
than  his  own."  This  declaration  is,  however,  supported  by  no  reason- 
ing, by  no  analysis  of  the  statute,  and  by  no  citation  of  authority. 

And  it  would  be  difficult  so  to  support  it.  Says  Dillon  :  "  The  stat- 
utes of  the  legislature  and  the  ordinances  of  our  municipal  corpora- 
ions  seldom  prescribe  with  much  detail  and  particularitj'  the  duties 
annexed  to  public  offices ;  and  it  requires  but  little  ingenuity  to  run 
nice  distinctions  between  what  duties  may  and  what  may  not  be  con- 
sidered strictly  official ;  and  if  these  distinctions  are  much  favored  by 


234  BUCK   V.    EUREKA. 

courts  of  justice,  it  may  lead  to  great  abuse."     Dillon  on  Municipal 
Corporations,  4tli  ed.,  sec.  233. 

When  the  law  of  tlie  state  says  that  the  district  attorney  shall  prose- 
cute and  defend  all  suits,  and  the  city  attorney  shall  attend  to  '■'■all 
suits,  matters,  and  things  in  which  the  city  may  be  legally  interested," 
it  is  a  most  forced  and  unwarranted  construction  to  hold  that  in  the 
one  case  it  means  only  such  suits  as  are  commenced  and  finally  deter- 
mined in  the  county  courts,  and  in  the  other  only  such  as  are  in  like 
manner  commenced  and  determined  in  the  municipal  courts.  If  the 
legislature  meant  that,  it  could  and  would  have  said  so.  But  when  it 
says  '■^  all  suits,  matters,  and  things,"  the  language  will  bear  no  other 
construction  than  that  which  is  patent  on  its  face.  No  rules  of  inter- 
petation  are  necessary  to  be  considered,  for  no  need  or  room  for  inter- 
pretation exists.  Thus  the  court  held  in  Myce  v.  City  of  Osage,  88 
.  Iowa,  558.  The  law  made  it  the  duty  of  the  city  attorney  "  to  acTas" 
11  attorney  for  the  city  in  any  suit  or  action  brought  by  or  against  the 
city,  and  generally  to  attend  to  the  interests  of  the  city  as  its  attorney." 
There,  as  here,  plaintiff  claimed  extra  compensation  for  services  ren- 
dered under  contract  with  the  council  for  defendins;  an  action  against 
the  city  in  the  district  and  supreme  court ;  and  there,  as  here,  urged 
that  it  was  no  part  of  his  official  duty  to  defend  the  suit.  Says  the 
court :  "It  seems  to  us  that  a  mere  reading  of  that  section  of  the  ordi- 
nance prescribing  the  duties  of  the  city  attorney  is  sufficient  to  show 
that  under  it  he  was  required  to  act  for  the  city  in  any  case  brought  by 
or  against  it.  .  .  .  That  the  services  rendered  by  plaintiff,  and  for 
which  he  seeks  now  to  recover,  were  included  within  his  duties  as  city 
attorney,  is  too  j)lain  to  admit  of  argument." 

In  Lancaster  County  v.  Fulton,  128  Pa.  St.  48,  construing  a  similar 
statute,  say  the  court:  "  The  services  for  which  the  contract  in  ques- 
tion undertakes  to  provide  are  clearly  within  the  sphere  of  the  duties 
of  the  solicitor  of  Lancaster  county." 

Russell  V.  Hallett,  23  Kan.  276,  is  not  in  conflict  with  the  authori- 
ties upon  this  question.  In  that  case  the  county  attorney  sued  his 
county  for  compensation  for  services  demanded  of  him  toithout  the 
duties  of  his  office,  as  the  court  decided.  He  had  been  compelled  to 
assist  in  a  trial  in  a  county  other  than  his  own.  The  law  expressly 
limited  his  duty  to  attending  before  magistrates  and  judges  in  his 
county.     Kansas  Gen.  Stats.,  sec.  137,  p.  264. 

Rut  it  is  unnecessary  to  multiply  quotations  upon  this  plain  proposi- 
tion. 

We  think  it  must  be  apparent  that  the  construction  given  to  the 
j  statute  in  Herrington  v.  Santa  Clara  County,  supra,  cannot  be  sup- 
1  ported,  and  should  no  longer  be  maintained ;  and  we  believe  that  the 
\  evil  results  to  the  public  service  which  must  arise  under  that  con- 
struction justify  and  demand  a  declaration  from  this  court  that  it  be 
no  longer  considered  as  authority. 

It  is  of  the  last  importance  that  any  and  every  public  officer  enter- 


\ 


BUCK   V.   EUREKA.  235 

ing  upon  the  discharge  of  his  duties  should  know  once  and  for  all  that, 
be  the  duties  onerous  or  be  Ihey  easy,  the  compensation  for  tliem  must  . 
be  that  fixed J)y  law,  and  that  only.     If  they  become  too  burdensome^; 
the  law  does  not  forbid  the  officer's  resignation  ;  but  it  does  emphati- 
cally say  that  he  shall  not,  under  any  circumstances,   by  use  of  the 
power  of  his  office,  by  contract  express  or  implied,  fair  or  unfair,  or  by 
aid  even  of  legislative  enactment,  obtain  increased  compensation  for 
their  performance.     "  The  successful  effort  to  obtain  office  is  not  un- 
frequently  followed  by  efforts  to  increase  its  emoluments,  while  the 
incessant  changes  which  the  progressive  spirit  of  the  times  is  introduc- 
ing effects  almost  every  year  changes  in  the  character  and  addition  to 
the  amount  of  duty  in  almost  every  official  station ;    and  to  allow  the 
changes  and  additions  to  lay  the  foundation  of  claims  for  extra  ser- 
vices would  soon  introduce  intolerable  mischief."     Evans  v.  City  oj 
Trenton,  24  N.  J.  L.  764.  .,        >^ 

The  services  here  performed  by  the  plaintiff  being  such  as  it  was  his 
duty  to  perform  as  the  city  attorney  of  the  city  of  Eureka,  the  con- 
tract was  an  attempt  to  increase  his  compensation,  and  is  in  violation 
of  the  constitution,  against  public  policy,  and  therefore  void. 

"  A  promise  to  pay  them  [officers]  extra  compensation  is  absolutely 
void  under  the  statute  of  Ohio.  Such  promise  could  not  be  enforced 
at  common  law,  being  against  sound  policy  and  quasi  extortion.  Eng- 
lish judges  have  declared  that  such  are  novel  in  courts  of  justice,  and 
that  actions  founded  on  such  promises  are  scandalous  and  shameful 
(2  Burr,  934) ;  and  in  the  court  of  errors  of  New  York  they  meet  with 
no  more  favor  {Hatch  v.  Mann,  15  Wend.  46)."  Gilmore  v.  Leiois, 
12  Ohio,  281;  Vanclercook\.  Williams^  106  lud.  345  ;  City  of  Decatur 
V.  Vermillion,  11  111.  315;  Biaiter  v.  Nolf,  71  Pa.  St.  282. 

Nor  can  plaintiff  recover  under  the  contract,  as  by  his  second  count  i-^^o-vih 
he  seeks  to  do,  for  such  part  of  the  services  as  was  rendered  after  his 
term  of  office  had  expired.  This  is  not  the  case  of  a  city  attorney 
carrying  on  litigation  after  his  term  of  office  had  expired,  with  the 
knowledge  and  consent  of  the  authorities,  in  which  case  an  implied 
contract  and  promise  to  pay  might  arise  after  his  tenure  had  termina- 
ted. Here  plaintiff  declares  on,  and  seeks  to  recover  under  a  contract 
against  public  policy,  and  wholly  void.  Such  a  contract  wall  not  sup- 
port any  action  for  recovery. 

As  is  said  by  the  court  in  Lancaster  County  v.  Fulton,  128  Pa.  St 
48:  "Therc^  is  no  pretense  that  any  new  agreement  was  entered  into, 
or  the  terms  of  the  original  in  any  manner  changed,  after  the  expira- 
tion of  the  term  of  office.  Neither  the  subject  of  a  new  contract  nor 
the  modification  of  the  original  even  appears  to  have  been  considered 
by  the  parties.  The  services  of  plaintiff  below  were  no  doubt  efficient 
and  valuable ;  but,  as  far  as  they  were  rendered  during  his  term  of 
,X)ffiee,  his  salary  is  all  the  compensation  he  can  claim.  As  to  services 
rendered  after  the  expiration  of  his  term  of  office,  under  and  in  pursu- 
ance of  the  original  illegal  and  void  contract,  he  cannot,  under  the 
pleadings  and  evidence  in  this  case,  recover." 


236 


COUGHLIN    V.    McELEOY. 


Ajcr>^ 


M^^ 


^^ 


c^A 


A  void  contract  cannot  form  the  basis  of  a  judicial  proceeding. 
Santa  Clara,  etc.,  Lumber  Co.  v.  Hayes,  76  Cal.  387,  9  Am.  St.  Rep.  211. 

There  are,  however,  considerations  in  plaintiff's  case  which  appeal 
with  force  to  a  court.  In  the  first  place  the  services  rendered,  as  found 
by  judge  and  jury,  were  of  great  value  to  defendant.  In  the  second 
place  they  were  rendered  under  an  early  interpretation  gi vela  to  the 
statute  which  justified  plaintiff  in  suing  upon  his  contract. 

In  now  declaring  what  we  believe  to  be  the  only  tenable  construction 
of  the  law  relative  to  the  duties  of  the  office,  it  has  followed  as  a  neces- 
sary consequence  that  the  contract,  void  as  against  public  policy,  will 
not  support  a  cause  of  action.  Plaintiff,  however,  if  the  facts  will 
warrant  it,  should  recover,  not  upon  the  original  or  void  contract,  but 
upon  an  implied  one,  for  services  rendered  after  the  expiration  of  his 
)f,erm  of  office. 

The  judgment  and  order  are  reversed,  with  directions  to  the  trial 
court  to  permit  plaintiff,  if  he  shall  be  so  advised,  to  amend  his  com- 
plaint, or  file  an  amended  complaint,  seeking  compensation  upon  quan- 
tum meriiit  for  services  rendered  after  the  expiration  of  his  term  of 

V^*"*^   h."^  "^ouGHLiN  V.  Mcelroy. 

1902.     74  Conti.  397. 

Torrance,  C.  J.  In  the  case  of  CongJdin  v.  McElroy,  72  Conn. 
99,  this  court  held,  in  efl'ect,  that  the  plaintiff  in  the  present  case  had 
been  elected  as  tax  collector  of  the  city  of  Bridgeport  for  the  term  be- 
ginning April  10th,  1899,  and  judgment  in  his  favor  to  that  effect  was 
rendered  in  the  Superior  Court.  Pending  that  contest,  McElroy  was 
in  possession  of  the  office  and  performed  the  duties  thereof  from  April 
10th,  1899,  to  August  8th  of  the  same  year.  During  this  period,  upon 
the  facts  found,  it  is  clear  that  the  plaintiff  was  the  tax  collectorjfe 
i^Tlx^^  the  defendant  McElroy  was  theTax  collector  de  farfo.  While 
holding  said  office  as  de  facto  collector,  McElroy  received  and  still  re- 
tains certain  sums  of  money,  which  the  plaintiff  seeks  to  recover  from 
the  city,  or  from  McElroy,  as  the  fees  and  emoluments  of  said  office 
belonging  to  him  as  collector  dejure. 

The  record  presents  for  consideration  two  main  questions :  1 .  Is 
the  de  jure  officer,  upon  the  facts  found,  entitled  to  recover  from  the 
city  the  sums  so  received  and  retained  by  the  de  facto  officer?  2.  Is 
he  entitled  to  recover  them  from  the  de  facto  officer  ? 

Although  questions  of  this  kind  have  frequently  been  considered 
and  passed  upon  elsewhere,  they  are,  so  far  as  we  know,  questions  of 
first  impression  in  this  State  ;  and  as  we  have  no  statute  upon  the  sub- 

1  On  the  position  of  an  oflBcer  appointed  under  an  unconstitutional  statute,  com- 
pare Norlun  V.  Shelbij  County,  118  U.  S.  425,  and  Lang  v.  Bayoune,  74  N.  J.  L.  455. 


couGiiLiN  V.  Mcelroy. 


237 


ject,  they  are  to  be  decided  by  the  rules  and  principles  of  the  common 
law  appl. cable  thereto.  The  decision  of  the  first  question  involves  the 
decision  of  a  subordinate  one,  namely,  whether  upon  the  facts  found 
the  city  can  be  considered  as  having  legally  paid  to  McElroy  the  fees 
retained  by  him  as  collector  de  facto. 

The  plaintiff  claims  that  under  the  city  charter  and  ordinances  it  is 
the  duty  of  the  tax  collector  to  pay  over  to  the  city  the  full  amount 
collected,  without  deduction,  and  to  present  his  claim  for  fees  to  the 
proper  authorities ;  and  that  McElroy  having  failed  to  comply  with  the 
provisions  of  the  charter  and  ordinances  in  this  respect,  the  money  re- 
tained by  him  for  fees  cannot  be  regarded  as  having  been  paid  to  him 
by  the  city.  Assuming,  without  deciding,  that  the  plaintiff  is  right  in 
his  construction  of  the  charter  and  ordinances  of  the  city  in  regard 
to  this  matter,  still  we  think  that  upon  the  facts  found,  and  for  the 
purposes  of  this  case,  the  city  must  be  regarded  as  having  paid  to 
McElroy  the  sums  by  him  retained. 

The  sums  retained  from  time  to  time  were  the  precise  sums  fixed  by 
law  as  the  fees  oTTEelJolTector;'  and  for  aught  that  appears  of  record 
they  were  due  at  the  very  time  they  were  so  retained,  upon  collections 
then  turned  over  to  the  city;  they  were  retained  with  the  full  consent 

__  I       niiBii    ■■—II  111 T ir^iTi    I  "^ ^ 

and  allowance  of  the  city,  upon  the  understanding  between  it  and  Mc- 
Elroy that  they  were  payments;  and  they  were  so  retained  and  al- 
lowed iu  the  utmost  good  faith  on  the  part  of  both,  and  in  the  full 
belief,  on  what  then  appeared  to  be  reasonable  grounds,  that  the  payee 
was  de  jure.,  as  be  was  de  facto,  the  incumbent  of  said  office.  Pay- 
ments of  this  kind  to  de  jure  collectors  had  been  made  in  this  way  by 
the  city  for  twenty  years,  and  with  full  knowledge  of  the  facts  no  one 
had  questioned  their  validity.  Fees  retained  by  de  jure  tax  collectors, 
nnder  circumstances  quite  similar  to  those  in  the  case  at  bar,  have  by 
our  courts,  in  favor  of  sureties  and  taxing  communities,  been  treated 
and  regarded  as  payments  ;  and  we  see  no  good  reason  in  the  present 
case  why  the  fees  retained  by  a  de  facto  officer  should  not  be  regarded, 
iu  favor  of  the  city,  as  having  been  paid  to  him  by  it.  We  think  tho 
evidence  objected  to  was  admissible  to  show  such  a  payment,  and  that 
it  was  made  in  good  faith ;  and  that  the  city,  as  against  the  plaintitf, 
must  be  regarded  as  having  paid  to  the  de  facto  collector,  in  good 
faith  and  before  he  was  ousted,  the  sums  retained  by  him. 

This  being  so,  the  ^lestiou  is  whether  the  city  having  in  good  faith 
paid  to  the  de  factojo^Q^ ^  before  judgment  of  ouster,  the  fees  of  thei 
office^  is  liable  to  the  dejure  officer  for  such  fees. 

Upon  this  question  the  decisions  of  the  courts  of  this  country  are  in 
direct/jonllict.  Quite  a  number  of  courts  of  high  authority,  among 
whicl^may  be  mentioned  those  of  California,  Maine,  Tennessee,  Wy- 
omiiyij,  and  Pennsylvania,  hold  that  such  a  pajnnent  does  not  protect 
the  kommunity  against  the  claims  of  the  de  jure  officer.  Dorsey  v. 
Smyt\\,  28  Cal.  21;  A7idreivs  v.  Portland,  79  Me.  484;  Menrpliisv. 
Wooc\;)ard,   12  Heisk.  (Tenn.)  499;    Rasmussen  v.  Carbon  County^  8 


Jo*  ci. 


\. 


238 


couGHLiN  V.  Mcelroy. 


\\ 


l?-^ 


),.        Wyo.    277,  45  L.  R.  A.  295;  Philadelphia  v.  i^mA;,  2  Atl.  Rep.  (Pa.) 
"^^■,505.     On  the  other  baud,  _tbe^^ourtsjoLjLia9iQj'itl_of  the  States  that 
have  had  occasion  to  pass  upon  this  question  hold  that  such  a  pay- 
-^,,;v/inent  does  protect  the  community.      Among  the  courts  holding  flTls 
^'        doctrine   may  be  mentioned  those  of  the   States  of  Michigan,    New- 
York,    Missouri,    Ohio,    Kansas,     Nebraska,    and    New    Hampshire. 
■■  Wayne  County  v.    Benoit,  20  Mich.  176;  Dolan  v.   Mayor ^   68  N.  Y. 

274;  McVeany  X.  Mayor,  80  id.  185;  State  v.  Clark,  52  Mo.  508; 
Wesiberg  v.  Kansas,  64  id.  493  ;  Steubenoille  v.  Culj),  38  Ohio  St.  18, 
23;  Commissioners  of  Saline  County  v.  Anderson,  20  Kan.  298;  State 
V.  Mibie,  36  Neb.  301,  19  L.  R.  A.  689;  Shannon  v.  Portsmouth,  54 
N.  H.  183. 

It  seems  to  us  that  the  rule  laid  down  in  this  last  class  of  cases  is  in 
reason  the  better  one.  It  rests  upon  the  familiar  and  reasonable  rule 
that  persons  having  the  right  to  do  business  with  a  fie  firfo  oOicer  like 
the  one  in  question,  have  the  right  to  regard  iiim  as  a  valid  olllcer, 
and  the  right  to  make  payments  to  him  without  the  risk  of  having  to 
a  pay  a  second  time.  This  is  the  rule  that  protected  the  tax-payers  in~ 
'^^*^«  making  payments  to  McElroy,  and  there  appears  to  be  no  good  rea- 
son why  it  should  not  be  applied  to  payments  made  by  the  city  to  him 
in  good  faith  and  before  judgment  of  ouster.  Our  conclusion  is  that 
the  city  is  not  liable  to  the  plaintiff  for  the  fees  paid  by  it  to  the  de 
facto  collector. 

With  regard  to  the  plaintiffs  fees  due  for  collections  made  by  him 
since  he  took  possession  of  the  office,  he  is  of  course  entitled  to  them. 
It  is  admitted  by  the  pleadings  that  he  duly  presented  his  claim  and 
demanded  pa3-ment  from  the  city.  It  is  true  that  the  claim  so  pre- 
sented was  for  the  fees  for  the  entire  year ;  but  the  greater  includes 
the  less,  and  we  think  his  claim  and  demand  included  the  fees  earned 
by  and  due  to  him  since  he  took  possession. 

The  next  question  is  whether  the  plaintiff  is  entitled  to  recover  from 
the  de  facto  officer  the  fees  paid  to  such  officer  by  the  city;  and  the 
answer  to  this  depends  upon  the  answer  to  the  further  question, 
whether  this  can  be  done  at  common  law  and  without  the  aid  of  a 
statute. 

The  courts  of  this  country  that  have  had  occasion  to  pass  upon  this 
last  question  have  almost  unanimously  answered  it  in  the  affirmative. 
That,  in  cases  like  the  present,  the  legal  right  to  the  office  carries  with 
it  the  right  to  the  salary  and  emoluments  thereof ,  that  the  salary  foL- 
lows  file  oIIIcl',  and  that  the  de  frcto  officer  though  he  performs  the 
ffiifies 


y^\ 


aJJ^ 


r^ 


of  the  office  has  no  legal  right  to  the  emolumenfs  fliereof,  are 
propo'sitions  so  generally  held  by  the  courts  as  to  make  the  citation  of 
authorities  in  support  of  them  almost  superfluous.  Nearly  all,  if  not 
all,  cases  hereinbefore  cited  upon  both  views  as  to  the  liability  of  the 
;City,  hold  that  the  de  facto  officer,  fur  fees  and  enioliunents  of  the  of- 
fice received  by  him,  is"Tiable  at  common  law  to  the  officer  do  jurp. 
So  foi*  a"s  we  aire  aware  the  only  well-considered  case  taking  a  contrary 


couGHLiN  V.  Mcelroy. 


239 


cases  at  least  the  judges  who 
expressed  views    in    harmony 


r 


view  of  the  law  is  that  of  Stulir  v.  Ciirran,  44  N.  J.  L.  181,  186,  and 
that  was  decided  by  a  divided  court  standing  seven  to  five.  We  think 
the  able  dissenting  opinion  of  Chief  Justice  Beasley  in  that  case  shows 
conclusively  that  at  common  law,  in  a  case  like  the  present,  the  de 
jure  officer  is  entitled  to  recover  from  the  de  facto  officer.  Another 
well-considered  case  directly  in  point  in  favor  of  this  view  is  that 
of  Kreitz  v.  Behrensmeyer,  149  111.  496,  24  L.  R.  A.  59.  As  be- 
fore intimated,  this  court  has  not  heretofore  had  occasion  to  decide 
a  question   similar  to  the  one  now  under   consideration,  but  in  two 

wrote  the  opinion  of  the  court  have 
with  what  we  hold  to  be  the  law. 
Thus,  Chief  Justice  Seymour,  in  Samis  v.  King,  40  Conn.  298, 
310,  said:  ''The  right  to  the  salary  of  an  office  (as  such,  inde- 
pendent of  actual  and  valuable  services  rendered)  must  on  principle 
depend  upon  the  legal  possession  of  the  office."  It  is  a  grave  ques-\  ^ 
tion  whether^merely.de_/ac/!oj3fficer,  even  when  he  actually  performs  I 
tTi^Thofe  duties  of  the  office,  can  enforce  the  payment  of  the  salary.  1 
TTTe^uthorities  seem  to  be  that  he  cannot.  Chief  Justice  Butler,  in  \ 
State  V.  Carroll,  38  Conn.  449,  471,  says  that  a  de  facto  officer  "can- 
not collect  his  fees,  or  claim  any  rights  incident  to  his  office,  without 
showing  himself  to  be  an  officer  de  jvre." 

That  this  law  will  at  times  operate  harshly  against  the  de  facto  of-  , 
ficer,  and  that  it  will  so  operate  in  the  case  at  bar,  must  be  conceded ; 
and  the  seeming  injustice  of  it  is  forcibly  stated  in  the  majority 
opinion  of  the  New  Jersey  court  before  cited ;  but  the  courts  must  en- 
force the  law  as  it  is  and  not  the  law  as  they  think  it  ought  to  be.  If 
the  law  requires  to  be  changed  that  must  be  left  to  the  legislature. 

Our  conclusion  is  that  upon  the  facts  found  in  this  case  the  plaintiff  I 
is  entitled  to  recover  from  McEloy  the  fees  retained  by  the  latter  as  I 
an  officer  de  facto. 

The  Superior  Court  is  advised  (1)  to  render  judgment  in  favor  of 
the  plaintiff  against  the  city  of  Bridgeport  for  the  sum  of  $887.50  with 
interest  from  the  date  of  demand,  (2)  to  render  judgment  in  favor  of 
the  plaintiff  against  McElroy  for  the  sum  of  $4,775.02  with  interest 
from  the  date  of  demand. 
.     Costs  in  this  court  will  be  taxed  in  favor  of  the  plaintiff. 

In  this  opinion  the  other  judges  concurred. 


U«^- 


\^ 


PW 


240  SPAULDING   V.   LOWELL. 


:V 


^  CHAPTEK   IV. 


POWERS   OF   A   MUNICIPAL   CORPORATION. 


Section  I.  —  General  Principles.  J^^^^^Cij/^ 

a' 


SPAULDING   V.   LOWELL. 

1839.     23  Pick.  7L 


Shaw,  C.  J.^  The  question,  and  the  only  one  of  considerable  impor-  ^^y^X^^ 
tance,  in  the  present  case,  is,  whether  the  plaintiff  was  liable  for  the  taxr^^>^,^ 
which  he  was  compelled  to  pay,  and  the  amount  of  which  he  seeks  to  fjjir^rv 
recover  back  in  the  present  action.  The  objection  is,  that  it  embraced  i/><^^ 
an  assessment  to  raise  money  for  a  market-house  which  the  town  o£  A 

Lowell,  before  its  incorporation  as  a  city,  had  voted  to   build.     No    '^^'**^ 
question  irTthis  case  arises  upon  the   relative  rights  and  powers  of  ''^''*<''T-*-<3 
towns  and  cities,  or  upon  the  change  from  one  form  of  municipal  gov-  i^w  U^ 
ernmeut  to  another,  during  the  pendency  of  these  proceedings.    Lowell  -WL, 
was  established  as  a  city  in  April,  1836.     By  the  terms  of  the  charter, 
they  were  made  or  rather  continued  a  corporation  for  all  purposes  for 
which  towns  are  incorporated,  and  they  were  thereby  declared  to  be 
entitled  to  all  the  rights,  immunities,  powers  and  privileges,  and  sub- 
ject to  all  the  duties  and  obligations  before  incumbent  upon  and  apper- 
taining to  said  town.     The  question  therefore  resolves  itself  into  the 
general  one,  whether  cities  and  towns'in  this  Commonwealth,  by  virtue 

**. ^>    ---^--  1,1,- 

of  their  general  powers,  and  without  any  special  authority  conferred 
on  tTiehcfrespectively  for  that  purpose,  have  authority  in  their  corpo- 
rate~capacity  to  build  a  market-house,  to  appropriate  money  therefor, 
and  assess  the  same,  in  common  with  other  town  charges,  upon  the 
inhabitants. 

The  principle  is  now  well  settled,  that  corporations,  being  creatures 
by  which  several  persons  are  associated  together  to  act  in  concert  for 
special  purposes,  can  exercise  no  powers  but  those  which  are  conferred 
upon  them  by  the  act  by  which  they  are  constituted,  or  such  as  are 
necessary  to  the  exercise  of  their  corporate  powers,  the  performance 
of  their  corporate  duties,  and  the  accomplishment  of  the  purposes  of 

1  Statement  of  facts  and  arguments  omitted. — Ed. 


SPAULDING    V.    LOWELL.  241 

their  association.     This  principle  is  fairly  derived  from  the  nature  of 
corporations,  and  the  mode  in  whicli  they  are  organized,  and  in  which 
their  affairs  must  be  conducted.   ,  In  aggregate  corporations,  as  a  gen-~7| 
eral  rule,  the  act  and  will  of  a  majority  is  deemed  in  law  the  act  and  [cyri^,- 
will  of  the  whole,  and  therefore  is  to  be  carried  into  effect  as  the  act  1     ' 
of  the  corporate  body.     The  consequence  is,  that  a  minority  must  be    / 
bound,  not  only  without,  but!  against  their  consent.     Such  obligation  |  '^   .  ^^ 
may  extend  to  every  onerous  duty,    to  pay  money  to  an   unlimited   1 
amount,  to  perform  services,  to  surrender  lands,  and  the  like.     It  is 
obvious,  therefore,  that  if  this  liability  were  to  extend  to  unlimited 
and  indefinite  objects,  the  citizen,  by  being  a  member  of  a  corporation, 
might  be  deprived  of  his  most  valuable  personal  rights  and  liberties. 
The  security  against  this  danger  is  in  a  steady  adherence  to  the  princi- 
ple stated,  that  corporations  can  only  exercise  their  powers  over  their  ■ 
respective  members,  foi-  the  accomplishment  of  limited  and  well  defined  j.      ,  "TZ 
objects.     And  if  this  principle  is  important  as  a  general  rule  of  social  'f  - 
right  and  of  municipal  law,  it  is  of  the  highest  importance  in  these  /  v^"^ 
States,  where  corporations  have  been  extended  and  multiplied,  so  as  I  1Wj-J.H^ 
to  embrace  almost  every  object  of  human  concern.   /The  general  prin-  '^ 

ciple  itself  is  fully  recognized  in  several  cases  in  this  Commonwealth.  1 
Bangs  v.  Snoiv,  1  ^Mass.  R.  181  ;  Stetson  v.  Kempton,  13  Mass.  R.  272 ;  ' 
Willard  v.  Newhunjport,  12  Pick.  227. 

But  although  the  rule  as  thus  stated,  and  thus  important  and  salu- 
tary, is  clear  and  unquestionable,  much  difficulty  arises  in  the  appli- 
cation of  it  to  such  a  class  of  corporations  as  cities  and  towns,  on 
account  of  the  indefinite  and  miscellaneous  purposes  for  which  they 
are  constituted.  This  difficulty  is  stated  and  illustrated  in  the  case 
last  above  cited.      Wlilard  v.  Neivbui-yport,  12  Pick.  227. 

The  general  authorit}'  of  towns  to  raise  money  by  assessment  of 
taxes  on  the  inhabitants,  was  given  by  St.  1785,  e.  75,  §  7,  "  for  the 
settlement,  maintenance  and  support  of  the  ministry,  schools,  the  poor,  ,  f  xj^JLy 
and  other  necessary  charges  arising  within  the  same  town." 

The  authority  is  not  much  more  definitely  expressed  in  the  Revised         w_ 
Statutes.     Revised  Stat.  c.  15,  §  12. 

"  Towns  shall  have  power  to  grant  and  vote  such  sums  of  money  a3 
they  shall  judge  necessary,  for  the  following  purposes, 

For  the  support  of  town  schools : 

For  the  support  and  maintenance  of  the  poor : 

For  burial  grounds  ;  and  ^ 

For  all  otlier_necessary  charges  arising  within  the  same  town."  f^-o-^-^"-^ 

By  a  comparison  of  the  two  provisions  it  will  appear  that  one  object  ^^^^.^.l^ 
of  town  charges  is  introduced  into  the  Revised  Statutes  that  was  not  ' 

expressed  in  the  old  one,  that  of  burial  grounds.     This  subject  was        (^, 
one  of  those  miscellaneous  cases,  mentioned  in  the  case  last  cited, 
over  which   towns  exercised   an  authority  in   fact  though   none   was 
given  by  statute.     It  is  since  conferred  by  this  provision  of  the  Revised 
Statutes. 


2i2  SPAULDIKG   V.    LOWELL, 

But  the  same  remark  may  be  applied  to  this,  as  to  the  old  statute, 
f,yr^.  I  that  it  is  manifestlj  not  intended  as  an  enumeration  of  all  the  particu- 
1  lar  objects,  because  some  of  the  most  obvious  subjects  of  town  charge 
'  are  omitted,  such  as  highways  and  bridges,  pounds,  magazines  and 
many  others.     This  is  also  manifest  from  the  sweeping  clause  "other 
necessary  charges,"  which  clearly  implies  that  many  things,  not  enu- 
merated, are  intended  to  be  included.     But  the  Court  are  not  at  all 
prepared  to  say,  that  under  this  term,    "other   necessary  charges," 
coupled  with  the  previous  clause,   "  such  sums  as  they  shall  judge  nec- 
essary," it  was  intended  to  authorize  towns  to  raise  and  appropriate 
money  for  general  objects,  or  that  it  was  intended  to  constitute  a  new, 
substantive  power  of  taxation .     It  would  be  letting  in  all  the  mischiefs 
arising  from  an  indefinite  and  arbitrary  power  of  a  majority  to  bind  a 
minority  to  an  unlimited  extent.     Beaty  v.  Lessee  of  Knoxder^  4  Peters, 
152,     On  the  contrary,  we  think  it  referred  to  other  provisions  of  law, 
and  well   established   usage,  to  ascertain  what   the   objects  of  town 
<^j^r     ..Vcharge  are,'ahd  to  provide  that  towns  might  raise  money  for  any  pur- 
^\  poses  thus  determined.     But  to  bring  any  particular  subject  within  this' 

"^^^         \  description  of  necessary  town  charges,  it  must  appear  to  be  money 
'S^^         necessary  to  the  execution  of  some  corporate  power,  the  enjoyment  of 
some  corporate  right,  or  the  performance  of  some  corporate  duty,  as 
established  by  law  or  by  long  usage.     For  instance,  towns  are  author- 
ized and  required  to  hold"lneetings^  as  incidental  thereunto  they  may 
-u-*.  Vr '       ^^^^'  purchase  or  build  a  town-house.     They  may  prosecute  and  defend 
^ft^^  C>v'.»   suits ;    as  incident  to  which,  they  may  appropriate  money  to  retain 
**^      """^counsel,  to  pay  costs,  and  to  meet  and  satisfy  judgments  which  may 
be  recovered  against  them.       In  this  very  case,  should  the  plaintiff 
recover,  the  defendants  must  have  authority,  in  their  corporate  capacity, 
^^  v"-        to  raise  money  to  satisfy  the  judgment,  of  which  the  plaintiff,  if  he 
'Xm^^y^y       continues  an  inhabitant,  will  be  liable  by  way  of  assessment  to  pay  his 

part. 
,^^,,..  The  earlier  statutes  of  the  province  and  colony  concur  with  those 

"^/o  under  the  present   constitution,  in  vesting  towns  with  the  power  to 

■V^'' .         agree  upon  and   make   rules,  orders  and  by-laws  for   managing  and 
ordering  the  prudential  affairs  of  the  town.     St.  178.5,  c.  75,  §  7;  Re- 
vised Stat.  c.  15,  §  13.    The  ambiguity  lies  in  the  indefinite  term  ^'■pru- 
dential affairs"  and  the  difliculty  arises  in  each  case,  in  settling  what 
J.    y,         .  concerns  fall  within  it.     One  thing  is  very  clear,  that  it  cannot  include 
^v^^^'^^i^^those  objects  of  social  concern  which  are  expressly  vested  in  other 
L^t*^^'^       bodies,  as  was  settled  in  the  case  of  Stetson  v.  Kempton.     In  that  case 
>i        jit  was  held,  that  the  defense  of  the  country  against  a  foreign  enemy, 
being  placed  under  the  jurisdiction  of  the  general  and  state  govern- 
ments, could  not  be  deemed  an  object  for  which  towns  can  raise  and 
appropriate  money. 

In  the  case  of  Willard  v.  Neiohxiryport,  above  cited,  some  attempt 
was  made  to  describe  what  is  understood  to  be  "  prudential  concerns," 
by  stating  that  it  embraces  those  subjects  affecting  the  accommodation 


0^ 


SPAULDING   V.   LOWELL. 


243 


and  convenience  of  the  inhabitants,  not  otherwise  specifically  provided 
for,  winch  have  been  placed  undei-  the  jimsdiction  of  towns  by  statute 

In  " '  " 


It  may  be  suggested  that  referring  to  usage  as  a  source 
of  this  power,  is  still  leaving  subjects  open  to  doubt.  It  does  so  ;  but 
as  there  are  some  subjects  which  have  long  been  regarded  as  within 
the  authority  of  towns,  not  made  so  by  statute,  and  as  such  powers 
have  never  been  questioned,  there  is  no  authority  whence  they  can  be 
derived  but  usage.  Indeed  a  recurrence  to  the  history  of  the  formation 
of  towns,^  will  show  that  most  of  the  powers  originated  in  usage, 
founded  on  the  convenience  and  necessities  of  tlio  iiihal)ilauts,  and 
were  afterwards  recognized  and  confirmed  by  statute.  Townships 
were  originally  local  divisions  of  the  territory',  made  with  a  view  to  a 
settlement  and  disposition  of  the  property  in  the  soil.  But  the  inhab- 
itants of  each  acted  together  on  many  subjects  of  common  interest 
to  themselves,  and  those  especially,  in  the  first  instance,  which  affected 
the  partition  and  appropriation  of  the  land  amongst  the  proprietors, 
who  were  strictly  tenants  in  common.  But  from  convenience  and, 
necessity  they  adopted  many  other  regulations  affecting  their  mutual 
interests  as  settlers- and  inhabitants.  After  these  regulations  had  con- 
tinued for  some  years,  they  were  recognized  and  confirmed  by  statute. 
The  first  act  which  seems  to  have  been  passed  was  in  1670,  forty 
years  after  the  first  settlement.  And  the  provincial  act  of  1692  con- 
tains a  preamble  reciting,  that  whereas  it  has  been  a  continued  practice 
and  custom  in  the  several  towns  within  this  province,  annually  to 
choose  selectmen  or  townsmen,  for  the  ordering  and  managing  of  the 
prudential  affairs,  &c. ,  and  then  goes  on  to  provide  for  the  choice  of 
selectmen,  overseers,  constables,  surveyors  of  highways,  tithingmen, 
fence-viewers,  clerks  of  the  market,  sealers  of  leather,  and  other  ordi- 
nary town  officers.  The  same  statute  gives  to  towns  the  authority  to 
make  orders  and  by-laws  "  for  managing  and  ordering  their  prudential 
affairs  of  such  town,  as  they  shall  judge  most  conducing  to  the  peace, 
welfare  and  good  order  thereof."  From  this  and  various  other  legal 
provisions,  we  think  it  will  be  found  that  towns  were  not  originally' 
incorporated  with  specific  and  enumerated  powers;  But  tljiat  the  inhab- 
itants and  settlers  of  each  township,  as  organized  bodies,  adopted 
regulations  for  their  common  convenience,  and  when  they  were,  incof- 
porato:!,  or  rather  recognized  by  general  laws  as  established  corporor 
tions,  the  powei's  which  they  had  thus  been  used  and  accustomed  to 
exercise  were  referred  to,  and  confirmed,  under  the  very  broad  and 
comprehensive  term,  "prudential  concerns."  So  in  the  officers  to  be 
elected,  after  enumerating  many  specifically,  the  statute  of  1692  adds, 
"  other  ordinary  town  officers."  Care  seems  to  be  taken  lest  in  a  spe- 
cific enumeration,  some  might  be  omitted  who,  according  to  custom, 
ought  to  be  chosen.  And  the  same  solicitude  is  manifested  through 
all  the  succeeding  enactments,  down  to  the  Revised  Statutes,  which, 
after  enumerating  many  officers  to  be  elected,  closes  with  the  addition 
of  "all  other  usual  town  officers." 


1 1^.^ 


O^jeAAA-n 


4.xy>-^ 


-aTVi* 


244 


SPAULDING   V,   LOWELL. 


'•/^In  lookins;  to  usage  and  custom  as  the  means  of  ascertaining  what 


r: 


A 


) 


subject  of  common  interest  is  embraced  under  the  term  "  prudentials,"' 
I  the  Court  are  of  opinion  that  the  erecting  of  a  market-place,  in  the 
large  towns  and  populous  villages,  is  embraced.  The  circumstance 
that  special  acts  of  legislation  have  been  occasionally  passed  respect- 
ing the  building  of  market-houses,  can  have  no  considerable  influence. 
Even  if  they  embraced  a  power,  in  terms,  to  erect  a  market-house,  it 
might  be  accounted  for,  by  considering  it  as  done  e.x  majori  cauteld; 
but  in  general  it  will  be  found,  that  these  acts  embraced  other  and 
additional  powers,  which  could  not  be  used  under  the  general  authority 
to  erect  a  market-house,  such  as  the  taking  of  land  for  the  public  use, 
as  in  the  case  of  the  extension  of  Faneuil  Hall  Market,  or  the  like.  St. 
1823,  c.  147.  In  the  case  of  Stetson  v.  Kempton,  which  seems  to  have 
been  well  considered,  and  has  ever  since  been  regarded  as  a  leading 
case,  in  considering  what  limitation  is  to  be  put  on  the  power  to  raise 
money  for  "other  necessary  charges,"  it  is  said,  "the  erection  of 
public  buildings  for  the  accommodation  of  the  inhabitants,  such  as 
town-houses  to  assemble  in,  and  market-houses  for  the  sale  of  provis- 
ions, may  also  be  a  proper  town  chai-ge,  and  may  come  within  tJie  fair 
meaning  of  the  term  ?iecessary."  And  though  it  was  not  the  question 
directly  before  the  Court,  yet  being  put  by  way  of  instance  as  itself 
unquestionable,  to  illustrate  the  general  proposition,  and  to  distinguish 
what  were  and  what  were  not  objects  of  town  charge,  it  is  very  strong 
evidence  of  the  usage.  The  early  statutes  on  the  subject  of  holding 
markets,  and  establishing  market  days,  can  have  but  little  bearing  on 
the  present  question.  They  related  to  holding  open  markets,  at  par- 
ticular times  and  places,  which  was  regarded  as  a  franchise  at  common 
law.  We  think  the  present  question  stands  upon  another  and  different 
footing,  that  of  long  established  and  well  settled  usage.  And  in  con- 
sidering this  subject  of  usage,  it  is  proper  to  add,  that  it  is  not  a  cas- 
ual or  occasional  exercise  of  a  power,  by  one  or  a  few  towns,  which 
will  constitute  such  a  usage ;  but  it  jmust  be  a  usage  reasonable  in 

'-^     f)         itself,  general  amongst  all  towns  of  like  situation  as  to  settlement  and 

w***'^'       population,  and  of  long  continuance.  —-"•"■ 

,  /.^yJcCwvAM''     On  the  whole,  the  Court  are  of  opinion  that  the  town  and  city  of 

)  Lowell  had  authority  to  raise  and  appropriate  money  for   building  a 

market-house,  and  to  assess  the  same  upon  the  inhabitants. 

It  was  further  contended,  in  the  present  case,  that  even  if  the  town 
had  authority  to  assess  money  for  building  a  market-house,  yet  that  it 
would  not  justify  the  present  tax,  because  a  part  of  the  building  was 
appropriated  to  other  objects.  If  this  had  been  a  colorable  act,  under 
the  pretence  of  exercising  a  legal  power,  looking  to  other  and  distinct 
objects  beyond  the  scope  of  the  principal  one,  it  might  be  treated  as 
the  abuse  of  power,  and  a  nullity.     But  we  perceive  no  evidence  to 


^^• 
^ 


V 


justify  such  a  couclusioft,  in  the  present  ease.  The  building  of  a 
market-house  was  the  principal  and  leading  object,  and  everything  else 
seems  to  have  been  incidental  and  subordinate.     We  cannot  therefore 


^  ■ 


•LA3>^vi 


c;;l- 


( 


*  ^  --: 


1 


-  S^^^^^Un^j.^  -z-l^i^^Y 


t>"^  wJ^ 


HOOD   V.   LYNN. 


245 


A 


say  that  it  was  such  an  excess  of  authority  as  to  invalidate  the  act8,\L*£3L..Uv. 
which  they  might  rightfully  do.  As  to  the  size  and  other  circumstances 
of  the  building,  if  the  accomplishment  of  the  object  was  within  the 
scope  of  the  corporate  powers  of  the  town,  the  corporation  itself  was  '^^  \ 
,the  proper  judge  of  the  fitness  of  the  building  for  its  objects,  and  it  is 
not  competent  in  this  suit  to  inquire  whether  it  was  a  larger  and  more 
expensive  building  than  the  exigencies  of  the  city  required. 

Plaintiff  nonsuit. 


^-  y.  ?^vi^ 


\.^' 


f^ 


HOOD  V.  LYNN. 

J»        _^  f '-i  1861.     1  Alle7i  {Mass.),  103. 

'S  X"^     Petition  under  St.  1847,  c.  37,  filed  June  30,  1857,  by  eleven  voters 
^■'^  V^and  tax -payers  of  Lynn,  for  an  injunction  to  restrain  the  respondents 
^^y^     from  paying  money  from  the  city  treasury  under  the  following  vote 
passed  on  the  29th  of  June  by  the  board  of  aldermen  and  common 


^ 


.^^^ 


> 


council  of  that  city  : 

"  Ordered,   that  his  honor  the  mayor  and   aldermen  Holmes    and 
Stacey,  with  such  as  the  council  see  fit  to  join,  be  a  joint  special  com- 
j^  ifaittee  whose  duty  it  shall  be  to  procure  a  display  of  fireworks  on  the] 
night  of  the  Fourth  of  July  next;  and  that  the  sum  of  five  hundred 
"dollars,  to  be  taken  from  the  contingent  fund,  be  and  the  same  is  here-j 
by  appropriated  for  the  purpose  of  defraying  the  expenses  thereof." 

The  citation  was  served  on  the  respondents  on  the  1st  of  July,  1857; 
and  it  was  agreed  that  afterwards  the  sum  of  S312.50  was  paid  for  ex- 
penses incurred  under  said  vote,  by  the  city  treasurer  on  the  warrant 
of  the  mayor,  and  that  the  sum  of  $187.50  remains  due  therefor. 

ir.  G.  Choate,,  for  the  petitioners. 

D.  Peabody^  for  the  respondents. 

BiGELOw,  C.  J.  The  nature  and  extent  of  the  power  of  towns  and 
cities  to  appropriate  money  and  incur  expenses  to  be  paid  out  of  the 
funds  raised  by  taxation  have  often  passed  under  the  judication  of 
this  court.  It  is  therefore  unnecessary  to  discuss  the  subject  at  length 
in  the  present  case.  The  general  pi-inciple  is  well  settled  that  muni- 
cipal corporations,  like  other  corporations  aggregate,  can  exercise  no 
powers  other  than.' those  which  are  conferred  on  them  by  the  act  by 
which  they  are  created,  o^'feuch  as  are  necessarily  incident  to  the  exer- 
cise of  their  corporate  rights,  the  performance  of  their  corporate 
duties,  and  the  accomplishment  of  the  purposes  for  which  they  are 
constituted.  The  observance  of  this  rule,  and  the  steady  and  firm  en- 
forcement of  it  by  courts  of  justice,  are  of  the  highest  importance. 
In  no  other  way  can  the  majority  be  prevented  from  an  oppressive 
and  reckless  use  of  power,  or  the  minority  protected  against  liability 


\')-^ 


Vr^- 


\\\^.A-y\  , 


.\  2-^-^U^Y 


P^  'W»^>^  Y"^^- 


246 


HOOD   V.    LYNN. 


for  an  illegal  and  unauthorized  expenditure  of  the  public  money.  It 
was  with  a  view  to  furnish  a  prompt  and  effective  remedy  to  restrain 
cities  and  towns  from  raising,  borrowing,  or  expending  money  for  pur- 
poses not  authorized  by  law,  and  to  enable  a  minority  to  guard  their 
rio^hts  and  interests,  when  such  unlawful  acts  were  threatened  or  in 
contemplation,  that  the  statute  of  1847,  c.  37,  (re-enacted  in  Gen.  Sts. 
c.  18  §  79,)  was  passed  ;  by  which  this  court  has  power  to  interfere 
summarily  on  the  petition  of  ten  taxable  inhabitants,  and  restrain  by 
injunction,  according  to  the  practice  of  courts  of  equity,  any  violation 
or  abuse  by  a  town  or  city  of  its  legal  right  and  power  to  pledge 
its  credit  or  to  raise  and  expend  money.  It  is  under  this  statute 
that  the  petitioners  in  the  present  case  ask  for  the  interference  of  the 
court. 

It  is  not  pretended  by  the  respondents  that  the  purpose  for  which 
they  appropriated  the  money  of  the  city,  by  the  vote  set  out  in  the 
bill,  comes  within  any  of  the  objects  enumerated  in  the  statutes  for 
which  towns  and  cities  have  power  to  grant  and  vote  money.  It  is 
suggested,  however,  that  it  may  come  within  the  general  clause  by 
which  they  are  authorized  to  raise  money  for  "all  other  necessary 
charges."  But  this  language  has  alread}'  received  a  judicial  interpre- 
tation, and,  under  the  broadest  and  most  liberal  construction  which 
has  ever  been  put  upon  it,  we  cannot  see  how  it  can  be  made  to  em- 
brace an  expenditure  like  that  contemplated  in  the  vote  passed  by  the 
respondents.  The  appropriation  is  neither  necessary  to  the  exercise 
of  any  power  expressly  granted  to  the  city ;  nor  is  it  incidental  to  any 
right  or  authority,  which,  though  not  expressly  granted,  has  its  origin 
in  well  settled  usage,  and  is  founded  upon  the  necessities,  convenience, 
or  even  the  comfort  of  the  inhabitants.  This  is  the  extreme  limit  of 
the  power  of  towns  and  cities  to  grant  money,  as  settled  by  repeated 
adjudications  of  this  court.  Stetson  v.  £^e7npfon,  13  Mass.  272  ;  Par- 
so?2s  V.  Goshen,  11  Pick.  396;  WiUarcl  v.  Neiohuryport,  12  Pick.  227; 
Allen  V.  Taunton^  19  Pick.  485;  Spaulding  v.  Loivell,  23  Pick.  71; 
Anthony  v.  Adams^  1  Met.  284.  Viewed  in  the  most  favorable  light 
for  the  respondents,  their  vote  authorized  an  expenditure  of  public 
money  to  celebrate  the  anniversary  of  a  great  event  of  national  and 
historical  interest,  in  a  manner  which  might  serve  to  amuse  the  inhab- 
itants, and  perhaps  excite  in  their  minds  a  spirit  of  patriotism  and  a 
love  of  liberty.  But  these  objects,  however  laudable,  do  not  come 
within  the  range  of  municipal  powers  and  duties.  If  money  in  the 
treasury  of  a  city  can  be  expended  to  commemorate  one  event  of  in- 
terest and  importance  in  the  history  of  the  country,  so  it  may  be  to 
celebrate  the  anniversary  of  any  and  every  other.  But  this  court  has 
already  decided  that  a  town  cannot  lawfully  appropriate  money  to 
commemorate  the  surrender  of  Cornwallis,  the  last  great  act  in  the 
series  of  events  which  marked  the  Revolution  and  consummated  the 
independence  of  tlie  country.      Tash  v.  Adams,  10  Cush.  252. 

Nor  would  there  be  any  limit  to  the  amount  of  money  which  might 


0-- 


PHELPS   V.    HAWLEY.  247 

be  expended  for  such  purpose,  nor  to  the  mode  in  which  the  expendi- 
ture might  be  made,  except  that  which  might  be  prescribed  by  the 
will  or  caprice  of  the  majority.  If  fireworks  and  illuminations  can  be 
permitted,  so  maj  dinners,  balls  and  fetes  of  every  description.  It  isi 
obvious  that  such  a  power  would  open  a  door  for  great  abuses,  and  ex- 
penditures of  the  most  wasteful  character. 

It  was  urged  by  the  counsel  for  the  respondents  that  the  appropria- 
tion in  the  present  case  might  be  justified  and  sustained  on  the  ground 
of  usage.  '  But  the  answer  to  the  argument  is  twofold.  In  the  first 
place,  there  is  no  evidence  in  the  case  of  the  existence  of  any  such 
usage  or  custom  in  the  towns  or  cities  of  this  commonwealth.  It  is 
not  even  alleged  in  the  answer  of  the  respondents.  Certainly  the 
court  cannot  take  judicial  cognizance  of  it.  But  even  if  such  usage(""~xll. 
was  alleged  and  proved,  it  would  not  alter  the  case.  An  unlawful  ex- 
penditure of  the  money  of  a  town  cannot  be  rendered  valid  by  usage, 
however  long  continued.  Abuses  of  power  and  violations  of  right  de- 
rive no  sanction  from  time  or  custom.  A  casual  or  occasional  exer- 
cise of  a  power  by  one  or  a  few  towns  will  not  constitute  a  usage.  It  y 
must  not  only  be  general,  reasonable  and  of  long  continuance,  but,  ijX<r^ 
what  is  more  important,  it  must  also  be  a  custom  necessary  to  the  ex- 
ercise of  some  corporate  power,  or  the  enjoyment  of  some  corporate 
right,  or  which  contributes  essentially  to  the  necessities  and  con- 
venience of  the  inhabitants.  The  usage  relied  on  in  the  present  case, 
if  established,  would  not  satisfy  either  of  these  last  named  requisites, 
which  are  necessary  to  give  it  validity.  It  was  said  by  this  court,  in  a  ^- o"^ 
recent  case,  that  there  are  many  things  in  the  management  of  town  af- 
fairs, which  are  done  without  objection  and  pass  by  general  consent, 
which  cannot,  when  objection  is  made  and  they  are  brought  to  the  test 
of  judicial  investigation,  be  supported  as  strictly  legal.  jSikes  v.  I/at- 
Jielcl,  13  Gray,  353.  The  present  case  is  an  illustration  of  the  truth 
of  this  remark. 

The  petitioners  were  guilty  of  no  laches  in  commencing  these  pro- 
ceedings. They  made  their  application  to  the  court  seasonably,  and 
the  respondents  had  ample  notice  that  their  proceedings  were  called  in 
question,  and  that  the  validity  of  their  vote  was  to  be  brought  to  the 
test  of  judicial  inquiry.  The  respondents  therefore  went  on  at  their 
peril ;  and  if  they  have  expended  the  money  of  the  city  for  an  unlaw- 
ful purpose,  they  must  take  the  consequences  of  their  own  wrongful 
act. 

Injunction  made  perpetual. 


\ 


248  PHELPS  V.   HAWLEY. 


3^' 


PHELPS  y.  HAWLEY. 

^     .  U-JUA'^-'^-y'  ^  1873.    52  iV.  Y.  23. 

^"  ^^jj^       Peckham,  J.*   The  ouly  question  involved  in  this  case  is,  upon  whom 
'^'   ,  '"^  rests  the  obligation  of  maintaining  the  bridge  in  Livingston  county, 

j*-"^-*^^^      between  the  towns  of  Geneseo  and  Leicester,  over  the  Genesee  river. 
^  (,A  N^*-**        Tjjg  plaintiff  repaired  the  bridge  upon  the  employment  of  the  former 
^v^  commissioners  of  highways  of  those  towns,  at  an  expense  of  $6,000, 

»^    ^  J^,  and  sues  their  successors  therefor. 

t-  Defendants  insist  that  the  bridge  is  a  county  charge. 

JiDS^S^*  Whether  it  is  so  or  not  depends  upon  the  construction  to  be  given  to 

^j^  «if  Um*-<.-<  ^j^g  language  of  the  act  incorporating  the  "  Leicester  Bridge  Company  " 
•  .^^lv-<A  ^^^  to  construct  a  bridge  at  this  point  in  1837. 

m„J<^v\  In  the  ninth  section  of  that  act  it  was  provided  that  if  the  bridge 

fyLc^    shall  not  be  completed  within  three  years,  or  if,  when  completed,  it 
\         should  be  impassable  for  fifteen  days  for  want  of  repairs,  unless  car- 
ried away  by  unavoidable  accident,  or  if  the  same  shall  not  be  rebuilt 
"\).  within  eighteen  months,  then  ''  the  bridge  shall  become  a  public  bridge, 

and  may  be  maintained  at  the  expense  of  the  county  of  Livingston." 
.>A,J.aws  of  1837,  §9. 

1         Was  this  permissive  or  mandatory  to  the  county? 
^    .TjL,'       There  are  reasons  why  it  should  be  mandatory. 
^'"^      >4J'     ^^  appears  that  the  stream  to  be  crossed  is  a  river,  and  the  expense 
m:**"*^  of  the  construction  and  repair  of  a  bridge  would  be  very  onerous  to  the 

'.  1   ^^C/sL/^     two  opposite  towns;  more  so  then,  probably,  than  now. 
2^^^^,_^juJuiv-^  1  The  corporation,  chartered  in  1837,  that  first  constructed  the  bridge, 
^^.  with  the  right  to  take  toll  for  thirty  years  if  kept  in  repair,  etc.,  aban- 

A  ,    {^ya,.'   doned  the  bridge  when  it  was  swept  off  some  fifteen  yeai's  after  the 

0  jji^  ■^     charter.     It  could  not  be  made  profitable. 
^r""^^"^^  I'l^Q  counj;y  of  Livingston  then  rebuilt  i^. 

The  course  of  legislation  as  to  bridges  over  that  river  shows  the  leg- 
islative sense,  that  they  should  be  substantially  a  county  charge ;  three 
or  four  having  been  built  by  the  county  under  statute  authority. 

Again,  if  this  act  be  merely  permissive  to  the  county  it  confers 
little  if  any  substantial  additional  power.  The  county  then  had 
authority  to  build  it  or  to  aid  any  town  or  towns  in  its  construction,  in 
a  limited  way,  in  its  discretion.  1  R.  S.  524,  §  119,  citing  the  statute 
2  R.  L.  281,  §  33. 

Again,  the  towns,  on  opposite  sides  of  a  stream,  at  that  time  had  no 
regulation  by  statute,  no  organization  to  be  put  in  motion  to  accom- 

^  Statement  of  facts  and  arguments  omitted. — Ed. 


AUROEA   WATER   CO.   V.    AUKORA.  249 

plish  the  construction  of  a  bridge.      The  first  act  passed  upon  that 
subject  was  in  1841.     Laws  of  1841,  p.  207. 

Under  that  act  bridges  could  be  built  though  towns  were  reluctant 
to  do  their  duty.  See  Hill  v.  Board  of  Supervisors  of  Livingston 
County,  12  N.  Y.  52. 

There  would  thus  seem  to  have  been  a  propriety  in  1837  that  the 
county  siiould  have  maintained  this  bridge. 

But  the  act  contains  apt  and  legal  language  to  require  the  county  to 
do  it.  It  says  it  shall  ' '  become  a  public  bridge,  and  may  be  maintained  " 
by  the  county. 

This  is  a  direction  to  a  public  body  (not  an  option  to  a  private  per- 
son or  corporation),  in  the  execution  whereof  the  inhabitants  of  that 
county  have  a  pecuniary  interest.  In  fact,  the  public  generally  may 
be  said  to  have  such  an  interest.  Where  persons  or  the  public  have_ 
_an  interest  in  having  the  act  done  by  a. public  body,  "may,"  in  such 
a  statute,  means  '•  must.''  Newbwrgli  Turn.  Co.  v.  Miller,  5  J.  C.  113  ; 
Malcolm  v.  Rogers,  5  Cow.  188. 

This  rule  must  prevail  where  there  is  nothing  that  would  evince  a 
contrary  intention  in  the  statute  or  in  the  surrounding  facts. 

This  disposes  of  the  question. 

It  is  conceded,  as  it  well  may  be,  that  if  the  county  by  this  act  was 
required  to  maintain  this  bridge,  no  act  of  the  commissioners  could 
bind  the  town,  as  they  then  had  no  authority  over  the  bridge.  Its 
maintenance  was  specially  provided  for.  Whether  the  commissioners 
can  involve  the  towns  in  debt  without  limit  for  bridges  it  is  not 
necessary  to  decide. 

The  judgment  should  be  affirmed. 

All  concur.        .    ,.       , 

^''^^  -Vt-  -\  ^  -  Judgment  affirmed. 


AURORA  WATER   CO.    v.    AURORA. 

1895.     129  Mo.  540. 

Sherwood,  J.^  Action  by  plaintiff  to  recover  of  defendant  city,  a 
city  of  the  fourth  class,  hydrant  rentals  amounting  in  the  aggregate  to 
$3,809.90.  Plaintiff's  claim  is  that  this  amount  was  earned  in  conse- 
quence and  by  the  performance  of  a  contract  made  between  plaintiff 
and  defendant  consisting  of  certain  ordinances  passed  by  defendant, 
adopted  by  a  nearly  unanimous  vote  of  the  tax-payers  and  accepted  by 
plaintiff  or  its  assignor. 

Defendant  denied  the  validity  of  the  contract  on  constitutional  and 
other  grounds,  and  plaintiff  replied.  Copies  of  the  ordinances  involved 
will  accompany  this  opinion. 

1  Statement  of  facts,  argument,  and  all  the  opinion  not  relating  to  the  power  to  call 
a  special  meeting  omitted.  —  Ed. 


250  AURORA  WATER  CO.  V.    AURORA. 

Defendant  paid  the  first  installment  of  rentals  for  July,  1892,  but 
after  the  ruling  announced  in  the  Columbia  case,  refused  to  make  any 
more  pa3'ments.  Inasmuch  as  the  constitutional  questions  put  in  issue 
by  the  jsleadings  herein  have  been  in  the  second  opinion  delivered  in 
Lamar  Water,  etc.,  Co.  v.  City  of  Lamar,  128  Mo.  188,  determined 
against  defendant's  contention  by  court  in  banc,  it  will  not  be  necessary 
to  discuss  them ;  we  proceed,  therefore,  to  the  consideration  of  such 
questions  which  the  record  contains  as  are  open  to  review. 

I.  a.    And  first  as  to  the  passage  on  February  23,  1891,  of  ordinance 

35,  which  ordinance  constitutes  the  ground  work  of  plaintiff's  demand. 

Various  objections  are  urged  against  the  validity  of  this  ordinance.    It  is 

g^^^_^,^„-^^-<.t  insisted  that  it  is  invalid  because  passed  at  an  unauthorized  meeting  of 

the  board,  in  that  it  was  not  a  regular  meeting,  and  that  the  statutes, 

,•,.>.  V  ^    while  giving  to  cities  of  the  first,  second,  and  possibly  the  third,  class 

^  power  to  call  special  meetings,  yet  that  no  such  power  is  conferred  by 

,  I  statute  on  cities  of  the  fourth  class.     It  may  be  granted  that  no  such 

'  ^  o.^A^A>v?  power  is  exjyressly  conferred,  yet  it  does  not  thence  follow  that  such 

power  is  nonexistent.     Of  necessity,  cities  possess  many  powers  which 

are  not  enumerated  in  the  gFant  of  power,  and  yel,  pass  as  tlie^meire" 

incidents  and  auxiliaries  of  those  expressly  granted. 

'ix  Cities  of  the  fourth  class,  to  which  defendant   city  belongs,  have 

'     ^^v-^^^J^^  conferred  upon  them  a  great  variety  of  powers  by  section  1589,  Re- 

'-^^j^---''''''^  vised  Statutes,  1889,  among  them  the  power  "...  to  pass  such  other 

Y<^C^^      ordinances  for  the  regulation  and  police  of  said  city,  and  commons 

thereto  appertaining,  as  they  shall  deem  necessary ;  and  to_£ass  such 

\A  ordinances,  not  inconsistent  with  this  article,  as  may  be  expedient  in 

'  maintaining  the  peace  and  good  government,  health  and  welfai'e  of  the 

city,  its  trade,  commerce  and  manufactories." 

As  instances  of  such  implied  powers  are  those  when  a  power  to  pass 
ordinances  gives  to  the  corporation,  without  any  express  grant  of 
power,  the  incidental  right  to  enforce  them  by  reasonable  pecuniary 
penalties.  In  England,  as  it  is  regarded  as  the  duty  and  purpose  of 
corporalions  to  preserve  the  health  and  safety  of  the  inhabitants  of 
cities,  it  has  always  been  held  that  reasonable  regulations  in  regard 
to  such  objects  fell  within  the  incidental  authority  of  corporations  to 
ordain. 

Under  power  conferred  to  pass  ordinances  to  promote  the  general 

^  j        welfare  and  preserve  the  peace,  a  city  may  fix  by  ordinance  the  time 

or  places  of  holding  public  markets,  and  make  such  other  regulations 

V  >  ■>^    J-      concerning  them  as  may  conduce  to  the  public  interest. 

i\Q^a-r£'^^^  Under  a  general  welfare  clause  in  relation  to  the  maintenance  of  the 

.^^^/.^^   '        good  order  of  the  city,  it  has  been  ruled  that  a  city  may  "  establish  all 

suitable  ordinances  for  administering  the  government  of  the  city,  the 

preservation  of  the    health   of    the    inhabitants,    and  the  convenient 

transaction  of  business  within  its  limits,  and  for  the  performance  of 

the  general  duties  required  by  law  of  municipal  corporations." 

Under  a  general  power  to  pass  "  any  other  by-laws  for  the  well- 


1^  ^' 


AURORA   WATER   CO.    V.   AURORA.  251 

being  of  the  city,"  such  corporation  may  pass  an  ordinance  prohibiting  i  .' 
saloons,  etc.,  to  be  kept  open   after  10  o'clock  at  nigld.     1    Dillon,  | 
Municipal  Corporations  [4  ed.],  sees.  338,  369,  384,  393,   396,  400,  j 
and  cases  cited. 

These  authorities  proceed  on  the  evident  theory  of  the  familiar 
maxim  that  a  grant  of  power  takes  with  it  all  the  necessary  incidents 
to  make  that  grant  effectual.  State  ex  rel.  v.  Walbridge^  119  Mo.  383, 
24  8.  AV.  Rep.  loc.  cit.  460,  and  cases  cited. 

And,  as  before  stated,  there  are  many  implied  powers  which  attach  '*^^wax 
themselves  to  municipal  corporations,  i^Jx^l&j^  ipo wers^  which  belong  to  jF^ 

them  because  they  are  municipal  corporations.,  just  as  certain  powers 
are  inherent  in  courts  because  of  the  very  nature  and  attributes  of 
their  organization.  Thus,  at  common  law,  it  is  an  established  principle 
in  England,  that  a  municipal  corporation  may,  by  virtue  of  its  inherent 
or  incidental  power,  pass  a  by-law  imposing  a  pecuniary  penalty  upon 
such  as  refuse  without  legal  excuse  an  ofice  to  which  they  have  been 
duly  elected.  And  the  eminent  jurist  and  author  heretofore  cited 
indicates  that  even  in  this   country,  under  the  usual  general  welfare  ^ 

clause  or  under  their  incidental  j^owers,  municipal  corporations  could, 
by  ordinance,  impose  a  reasonable  fine  because  of  a  similar  refusal. 
1  Dillon,  Municipal  Corporations  [4  ed.],  section  223. 

So,  also,  it  is  one  of  the  common  law  incidents  of  all  corporations  to     Vj^v-^-. 
remove  a  corporate  ofHcer  from  his  office  for  reasonable  and  just  cause,     r.  \^.<j^- 
Ibid,  section  240.     This  principle  was  recognized  and  declared  in  State 
ex  rel.  v.    Walbridge,   supra ;  see,  also.   City  v.  Schoeribusch,  95  Mo. 
618.     These  authorities  have  been  instanced  in  reply  to  the  suggestion 
of  counsel  for  defendant  that  "  a  city  can  only  do  those  things  that  its 
charter  or  the   general  statutes   expressly   authorize  it  to  do."     And 
surely  no  power  could  possess  a  stronger  sanction  of  necessary  impli- 
cation, or  could  be  more  conducive  toward  "maintaining  the  peace  and 
good   government,    health  and  welfare  of  the  city  "  than  one  whichi 
enables  the  legal  representatives  of  a  municipal  corporation  toassemblel 
in  special  meeting  and  pass  such  ordinance  as  either  the  exigencv  or  \ 
expediency  of  the  situation   demands.     And  the  authorities  we  find 
announce  that  among  other  implied  powers  of  a  municipal  corporation 
is  the  one  which  allows  a  special  meeting  to  be  called  upon  due  notice, 
or  to  be  held  without  notice  where  all  of  the  board  are  present,  in 
which  latter   case   the   necessity  of   notice,  in  consequence  of  being 
waived  by  universal  consent,  is  dispensed  with.     1  Dillon,  Municipal 
Corporations    [4   ed.],    section   263 ;  1  Beach,    Public   Corporations, 
sections   268,    269.     Such  waiver  occurred  in  the  case  at  bar  when 
ordinance  35  was  passed.     This  being  the  case,  it  is  wholly  immaterial 
that  section  132  of  the  ordinances  of  the  defendant  city  required  that 
should  a  quorum  not  be  present,  the  meeting  should  stand  adjourned 
till  the  next  regular  meeting. 


oJU.^ 


V 


^^  _^i^^     z^- 


\ 


252 


VANDINE. 


VANDINE,    Petitioner. 
6  Pick. 


1828. 


187. 


Section  II.  —  Legislative  Power,      _^oJ^     ^  **     J^ 

Petition  for  a  writ  of  certiorari  to  the  Municipal  Court  of  the  city  of     w^ 
Boston.     Vandiue  was  prosecuted  upon  a  Bj^-Iaw  of  Boston,  passed  in     .,~-*^ 
April  1826,  by  which  it  is  ordained,  that  no  person  shall  remove,  cart    r\ 
or  carry  through  any  of  the  streets,  squares,  lanes,  or  alleys  of  the  city, 
any  house-dirt,  I'efuse,  offal,  filth  or  animal  or  vegetable  substance  from 
any  of  the  d^elling-iiouses  or  other  places  occupied  by  the  inhabitants, 
in  any  cart,  wagon,  truck,  hand-cart  or  other  vehicle,  unless  such  per- 
son so  removing,  etc.  together  with  the  cart,  etc.  shall  be  dul}'  licensed, 
for  that  emplo3inent  and  purpose  by  the  ma3or  and  aldermen,  upon 
such  terms  and  conditions  as  they  shall  deem  the  health,  comfort,"  con  - 
veuience  o.r_  interest  of  the  (uty  require,  on  pain  of  forfeiting  a  sum  not 
les^  than  three  dollars  nor  more  than  twentj'. 

It  was  proved  at  the  trial,  that  Vandine  transported  house-dirt  and 
offal  from  the  yards  of  houses  to  his  cart  standing  in  the  streets  of  the 
city. 

Vandine  being  called  on  for  his  defence,  it  was  agreed  that  he  was 
an  inhabitaiit  of  the  town  of  Camlnddge,  and  that  he  owned  and  kept 
there  a  large  number  of  hogs. 

The  judge  instructed  the  jury  that  the  subject  of  the  regulation 
was  one  on  which  it  was  proper  for  the  city  to  legislate.  .  .  . 
He  further  instructed  the  jury  that,  so  far  as  by  virtue  of  the  general 
laws  of  the  Commonwealth,  the  city  council  had  power  to  make  by-laws 
for  governing  the  cit^,  these  regulations  were  binding  on  all  persons 
actually  resident  within  its  limits,  either  for  business  or  pleasure,  and 
whether  inhabitants  or  strangers.^  .   .   . 

Putnam,  J.,  delivered  the  opinion  of  the  Court.  The  first  objection 
is  that  this  b3--law  is  not  binding  upon  strangers,  if  it  should  be 
considered  as  binding  upon  the  citizens  of  Boston. 

Some  by-laws  are  binding  upon  strangers  as  well  as  upon  the  inhab- 
itants or  members  of  the  corporation,  and  some  are  not.  The  distinc- 
tion is  between  corporations  united  as  a  fraternit\'  for  the  purposes  of 
business,  having  no  local  jurisdiction,  and  corporations  having  a 
territorial  jurisdiction  ;  the  former  have  not,  but  the  latter  have  power 
to  make  by-laws  binding  upon  strangers. 

For  example:  a  by-law  of  the  corporation  of  Trinity  House,  "  that 
every  mariner,  within  twenty  four  hours  after  anchorage  in  the  Thames, 
put  his  gunpowder  on  shore,  does  not  bind,  because  the  corporation  has 
no  jurisdiction  upon  the  Thames."     Com.  Dig.  Bye-law,  C  2. 

In  the  case  of  Dodwell  v.  The  University  of  Oxford,  2  Ventr.  33,  the 


1  Part  of  the  instructions  and  the  arguments  of  counsel  have  been  omitted.  —  Ed. 


VANDINE.  25 


Chancellor's  Court  of  the  Universit}'  rande  a  b3'-law,  that   whoever, 
privileged  or  not  privileged,  should  be  taken  walking  in  the  streets  at 
9  o'clock  at  night,  having  no  reasonable  excuse,  by  the  proctor,  etc. 
should  forfeit,  etc.     And  it  was  held  that  the   corporation  could  not /O  H?^ 
make  a  by-law  binding  u|)on  anj-  who  were  not  of  their  body.     Theyj  ^-^rp8  ' 
went  ^!>eytmTt~ttKnl•  jurisdiclion,  which   could    not   be    considered   as' 
extending  to  the  inhabitants  of  Oxford  who  were  not  scholars.     Regard 
is  to  be  had  to  the  nature  of  the  incorporation ;  if  it  is  a  banking  incor-  I  \^-^^^:V^ 
poration,  for  example,  their  by-laws  must  be  confined  to  the  proper  p    A-"^ 

)n  has  a  local  I  ^''  - 


mode  of  conducting  their  affairs.     "Where  the  corporatioi 

jurisdiction,  their  by-laws  affect  all  who  come  within  it ;  for  exumplep  ..-V'*-'''**'''^ 

the  by-law  of  the  city  of  London,  that  no  citizen,  freeman  or  stranger, 

should  expose  any  broad-cloth  to  sale  within  the  city  before  it  should; 

be  brought  to  Blackwell  Hall  to  be  examined  whether  it  were  saleable      *_V     *-^ 

or  not,  was  held  binding  upon  strangers  as  well  as  citizens.     5  Co.  63.         ^><>-aa 

So  in  Pierce  v.   Bartrtini,  Cowp.  269,  a  by-law  of  the  mayor  and 
common  council  of  the  city  of  Exeter,  that  no  person  should  slaughter 
beasts  or  keep  swine  within  the  walls  of  the  citv,  was  held  good  against 
tlie  defendant,  who  was  not  free  of  the  citv,  but  only  residing  there. 
He  was  considered  as  an  inhaliitant  />/'o  hac  vice.     So  where  the  cor-ut*^--  '    " 
poration  have  jurisdiction  over  all  of  the  same  trade   or   profession!    '■•'■'*^  Vt 
within  certain  limits,  as  the  College  of  Physicians  have  for  seven  miles!  C*-oiAjji^ 
rouiid^London  ;  whose  by-laws  regulating  the  practice  of  physic  are  \ 
brndiiig  upon  all  within  those  limits. 

The  by-laws  which  are  made  by  corporations  having  a  local  jurisdic- 
tion, are  to  be  observed  and  obeyed  by  all  who  come  witliin  it^,  in  the 
same  manner  as  aliens  and  strangers  within  the  commonwealth  are 
bound  to  know  and  obey  the  laws  of  the  land,  notwithstanding  they 
may  not  know  the  language  in  which  they  are  written.  They  receive 
the  benefits  arising  from  the  munici[)al  arrangements,  and  are  presumed!^'  ^  ASyx 
to  assent  to  them,  upon  the  same  principle  which  requires  from  them  a\  "  '  '  " 
temporary  allegiance  to  the  state  for  the  protection  it  affords  to  them 
during  their  residence. 

But  it  is  contended  that  this  by-law  is  void  as  it  is  in  restraint  ofl^}^-^ 

on  of  trndc  is  in  ^.^-^-^  ''  • 


trade,  and  operates  as  a  monopoly.     Every  regulatioi 

some  sense  a  restraint  upon  it;  it  is  some  clog  or  impediment,  but  it 

does  not  iherefore  follow  that  it  is  to  be  vacated.     If  tlie  regulation  is  . 

unreasonable,  it  is  void ;  if  necessary  for  the  good  government  of  the  ^  ^^  A 

societ}',  it  is  good.  ^' 

The  case  cited  by  the  counsel  for  the  defendant  from  1  Rol.  Abr. 
364,  was  of  the  former  character.  The  mayor  and  commonalty  of 
London  made  a  by-law,  that  no  carman  within  the  city  should  go  with 
his  cart,  without  license  from  the  wardens  of  such  an  hospital,  under  a 
certain  penalty  for  each  offence ;  and  it  was  held  to  be  a  void  by-law, 
because  it  was  in  restraint  of  the  lii)erty  of  the  trade  of  a  carman,  and 
it  was  held  to  be  unreasonable,  because  it  went  to  the  private  benefit  of' 
the  wardens  of  the  hospital,  and  was  in  the  nature  of  a  monopoly.  |     ■ -^ 


254 


VANDINE. 


c^^' 


0^1 


4n  uj-A^yJ"'' 


'^ 


6^ 


a-.'vO 


.v-^^- 


J^. 


Now  we  think  that  case  wac  rightl}'  decided  ;  it  was  an  act  of  oppression. 
We  perceive  no  reason  wh}-  the  wardens  of  the  hospital  should  have  a 
superintendance  and  control  of  all  the  business  of  the  carmen,  thus 
laying  them  under  a  contribution  at  the  will  of  the  wardens. 

To  arrive  at  a  correct  decision  whether  the  b^'-law  be  reasonable  or 
not,  regard  must  be  had  to  its  object  and  necessit}'.  Minute  regula- 
tions are  required  in  a  great  cit}',  which  would  be  absurd  in  the  country. 
The  cases  upon  this  subject  are  well  collected  by  Baron  Comyns  in  his 
Digest,  title  "  Bje-law."  It  has  been  found  to  be  reasonable  in  the  city 
of  London,  to  provide  that  brewers'  drays  should  not  be  in  the  streets 
there  after  eleven  o'clock  in  the  morning  in  summer,  and  one  in  winter ; 
that  no  person  should  unlade  coals  out  of  a  barge,  if  he  be  not  of  the 
porter's  company;  thus  in  some  manner  restraining  trade. 

There  have  been  regulations  also  adopted  in  that  city,  that  none 
shall  be  brokers  unless  licensed  and  sworn  ;  tliat  none  shall  be  hawkers 
without  license ;  thus  in  some  measure  restraining  the  natural  rights 
of  the  subjects.  Now  it  is  contended  that  the  by-law  under  considera- 
tion is  in  restraint,  and  not  a  mere  regulation  of  the  trade  in  which  the 
defendant  is  engaged  ;  that  he  provides  as  good  and  tight  carls  as  the 
men  do  who  are  authorized  by  the  city,  in  the  performance  of  this 
labor.  We  do  not  perceive  that  there  is  any  more  reason  to  complain 
of  the  law  requiring  a  license  to  do  this  work,  than  of  the  law  prohibit- 
ing the  keeping  of  livery  stables  in  an\'  place  not  licensed.  One  might 
just  as  well  complain  of  the  regulation  which  prevents  him  from  being 
an  auctioneer  without  license  ;  and  so  of  various  other  trades  and  con- 
cerns which  it  is  found  necessary  to  subject  to  such  restriction. 

Tlie  great  object  of  the  cit}'  is  to  preserve  the  health  of  the  inhabi- 
tants. To  attain  that,  they  wisely  disregard  any  expense  which  is 
deemed  to  be  requisite.  They  might  probably  have  these  offensive 
substances  carried  out  of  the  city  without  any  expense,  if  the}'  would 
permit  the  people  from  the  country'  to  take  them  away  at  such  times 
and  in  such  manner  as  would  best  accommodate  them.  Ever}'  one  will 
see  that  if  this  business  were  thus  managed,  there  would  be  continual 
moving  nuisances  at  all  times,  and  in  all  the  streets  of  the  city,  break- 
ing up  the  streets  by  their  weight  and  poisoning  the  air  with  their 
effluvia.  It  is  obvious,  that  the  object  and  interest  of  the  city,  and 
those  of  the  carmen,  in  this  concern,  are  extremely  different.  But  it  is 
contended  that  the  city  authorities  may  regulate  strangers  and  un- 
licensed persons,  in  regard  to  the  number  of  horses  and  kind  of  carts 
to  be  employed,  just  as  well  as  they  can  carts  and  the  conduct  of  the 
licensed  persons.  It  seems  to  us,  however,  that  the  city  authority  has 
judged  well,  in  this  matter.  They  prefer  to  employ  men  over  whom 
they  have  an  entire  control  by  night  and  by  day,  whose  services  may 
be  always  had,  and  who  will  be  able  from  habit  to  do  this  work  in  the 
best  possible  way  and  time.  Practically  we  think  the  main  object  of 
the  city  government  will  be  better  accomplished  by  the  arrangement 
they  have  adopted,  than  by  relying  upon  the  labor  of  others,  against 


COMMONWEALTH   V.    STODDER.  255 

whom  the  government  would  have  no  other  remedy  than  b}'  a  suit  for  a 
breach  of  contract.  The  sources  of  contagion  and  disease  will  be 
speedily  removed  in  small  loads,  which  will  not  injure  the  pavements, 
nor  annoy  the  inhabitants.  We  are  all  satisfied  that  the  law  is  reason- 
able, and  not  only  within  the  power  of  the  government  to  prescribe, 
hut  well  adapted  to  preserve  the  health  of  the  city. 

The  direction  and  opinion  of  the  judge  of  the  Municipal  Court  was      \  '^\ 
entirely  correct  \\  ^^^^*-r~'^*''\  '\^ 


^^^^^^J^'iT^-'^  \\^  COMMONWEALTH  v.   STODDER.  .    "^  \ 


1848.     2  Cush.  562. 


Dewey  J.^     The  present  case  comes  before  us  on  exceptions  to  the 
ruling  of  the  municipal  court,  upon  the  trial  of  a  complaint  originally 
instituted  in  the  police  court  for  the  city  of  Boston,  and  carried  by 
K  yJ^    appeal  to  the  municipal  court. 

The  defendant  admitted,  upon  the  trial,  that  he  had  driven  an  omni- 

-.    r        ^  bus  set  up  by  a  citizen  of  Roxbury,  which  carriage  ran  several  times 

^^^  each  day  from  the  centre  of  the  most  populous  part  of  the  city  of  Rox- 

^^       bury,  through  the  public  streets  of  the  city  of  Boston,  for  the  convey- 

J^^"^  ance  of  passengers,  for  hire,  to  and  from  Roxbury  and  Boston,  and 

V^      j^    that  he  drove  the  same  without  any  license  from  the  mayor  and  alder- 

^y^'^^JS'  men  of  Boston. 

A*^\s-^^  The  defendant  denies  that  this  constitutes  an  offence,  for  which  he 

\n^    is  liable  to  any  penalty  of  forfeiture.     The  grounds  of  the  defence 

^  „>yN<^  raise  the  question  of_tlie  legality  of  the  ordinajnce  of  the  mayor  and 

j4a^      ^aldermen,  adopted  July  r2th,  1847;  the  prosecution  being  instituted 

to  recover  a  penalty  for  a  violation  of  that  ordinance. 

In  the  arguments  addressed  to  the  court,  the  question  was  somewhat 
discussed,  as  to  the  power  incident  to  municipal  corporations,  to 
create  bjMaws  of  the  character  here  adopted ;  and  a  reference  was 
made  to  various  cases  in  the  English  courts,  where  questions  of  this 
nature  had  arisen.  Upon  examination  of  those  cases,  they  Will  be 
found  less  important  and  less  satisfactory  as  guides  here,  inasmuch  as 


VWN^ 


V>-> 


\-o  ^"^ 


it  is  quite  obvious,  that  in  many  of  tiiem,  and  particularly  those  where      s^j-xr^ 
the  ordinance  seemed  most  questionable,  as  not  being  within  the  ordi- 
nary exerciae  of  municipal  authority,  the  by-laws  were  sustained,  upon 
the  ground  of  ancient  and  long  continued  usage,  ripening  into  a  pre- 
scriptive right,  on  the  part  of  the  municipal  corporation. 

No  such  ground  can  be  urged  here,  and  the  present  ordinance,  if 
sustained  at  all,  must  be  shown  to  be  authorized  by  the  expre^  pro- 
vision  of  the  charter,  or  be  derived  as  an  incidental  power  resulting 
frmrrlts  incorporation  as  a  city,  or  be  found  in  some  general  or  special 
statu teT" 

»  Statement  of  facts  and  arguments  omitted.  —  Ed. 


1^^' 


256  COMMONWEALTH   V.   STODDER. 

The  city  charter  (St.  1821,  c.  110)  contains  various  provisions  bear- 
ing upon  this  subject,  (see  §§  1,  13,  15,)  which  it  seems  unnecessary 
l^articularly  to  consider,  because  the  power  is  more  directly  given  to 
the  mayor  and  aldermen,  to  act  upon  this  subject,  by  the  statute  of 
1847,  c.  224. 
A-X\  •  By  this  statute,  it  is  enacted,  that  the  mayor  and  aldermen  of  any 

city  shall  have  power  to  adopt  such  rules^  and  orders,  as  to  them  shall 
ppear  necessary  and  expedient,  for  the  due  regulation,  in  such  city, 
of  omnibuses,  stage  coaches,  &c.,  used  wholly  or  in  part  in  such  city, 
V  whether  by  prescribing  their  routes  or  places  of  standing,  or  in  any 

other  manner  whatsoever.  The  ordinance  of  July  l2th,  1847,  was  ob- 
viously passed  under  the  authority  supposed  to  be  conferred  upon  the 
mayor  and  aldermen  by  this  statute. 

We  are  then  brought  to  the  inquiry,  whether  tha  authority  vested  in 

the  mayor  and  aldermen  by  the  above  mentioned  statute  will  authorize 

the  ordinance  now  sought  to  be  enforced.     This  question  must  be  an- 

i^^"-"-^^,      swered  by  considering  somewhat  in  detail  the  various  provisions  of  the 

^        ordinance: 

rt4v>  -       1.   As  to  those  portions  of  the  ordinance  prescribing  the  routes  and 
^)^v-^    streets,  on  which  certain  lines  of  omnibuses  were  to  pass,  and  prohib- 
^^A-<>      iting  such  vehicles  from  being  driven  on  any  other  route  than  those 

thus  prescribed,  and  prescribing  their  stands. 
^  ^^i^-y^cVv^-vv^      Regulations  of  this  nature  are  regulations  as  to  the  use  of  omnibuses 
CjX^^     and  stage  coaches,  while  passing  over  the  public  streets  of  the  city, 
'^^'*'\1       and  are  within  the  legitimate  powers  of  the  mayor  and  aldermen.     The 
'>*A*>J'*\  1  public  safety  and  convenience  of  travellers  may  require  regulations  of ' 
.rS>^-*^    \this  character,     If  new  and  unusual    modes  of  trunsportiiig  persons 
jover  the  public  streets  are  introduced,  which,  from  the  methods  made 
use  of  for  propelling  the  carriage,  or  the  size  of  the  vehicle,  or  the 
number  of  horses  attached  thereto,  will  obviously  endanger  the  public 
.- ;     1  safety,  or  so  engross  the  whole  width  of  the'  street  as  virtually  to  ex- 
-*-"'\  elude  all  other  vehicles,  or  greatly  to  obstruct  them  in  their  passing 
^JtAy^^  'thereon,  it  would  certainly  be  reasonable  and  proper  and  within  the 
^*^     •*!    legitimate  powers  of   the    mayor   and    aldermen,    under   the    statute 
(j^"""^  J    already  cited,  and  the  powers  conferred  by  the  city  charter,  to  regulate 
the  route  of  the  streets  over  which  such  carriages  were  to  run,  and  the 
rate  of  speed,  and  to  interdict  the  stopping  in  the  public  streets  un- 
necessarily,  to  the  great  hinderance  and  delay  of  those  in  the  rear 
travelling  on  the  same  route. 

We  perceive  nothing  objectionable  in  an  ordinance,  by  the  mayor 
and  aldermen,  providing  for  the  safety  and  convenience  of  the  public 
generally,  by  prescribing,  by  a  general  by-law  or  ordinance,  certain 
streets  or  portions  of  streets,  to  be  used  for  travel  by  vehicles,  expos- 
ing by  their  manner  of  use  the  lives  and  limbs  of  the  public  generally, 
who  may  have  occasion  to  use  the  public  streets,  if  such  vehicles  are 
permitted  to  use  the  public  streets  indiscriminately  ;  and  such  regula- 
tions and  restrictions  might  be  warranted  even  to  effect  the  minor  object, 


'\aSUj^^ 


"WCX 


COMMONWEALTH    V.    STODDER.  257 

that  of  preventing  the  greatly  obstructing  the  free  and  convenient  use  of 
the  streets  for  general  purposes,  by  interdicting  carriages  of  unusual  size 
or  drawn  by  an  unusual  number  of  animals,  or  those  of  sucli  character 
as  would  greatly  interfere  with  the  public  convenience  and  safety. 
To  take  a  strong  case :  Suppose  the  proprietor  of  the  omnibuses  from 
Roxbury  should  deem  it  expedient  to  propel  his  carriages  by  steam 
power,  passing  through  "Wasiiington  Street,  at  a  rapid  rate,  would  it 
not  be  a  lawful  and  proper  regulation  for  the  mayor  and  aldermen  to 
prohibit  the  using  of  Washington  Street  by  vehicles  propelled  by  steam 
power?     We  cannot  doubt  that  it  would  be. 

Acting  upon  this  principle,  various  ordinances  have  been  adopted 
by  the  city  government  regulating  the  rate  of  speed  of  travellers  in  the 
public  streets,  the  hour  of  the  day  in  which  the  public  streets  may  be 
used  for  certain  purposes,  and  excluding  vehicles  of  all  kinds  from  en- 
tering upon  the  sidewalks  on  the  public  streets.  So  far  as  relates  to 
the  restriction  of  carriages  to  certain  routes,  there  is  nothing  in  the 
ordinance  preventing  any  individual  from  running  omnibuses  in  every 
direction.  The  proprietor  of  the  Roxbui-y  omnibuses,  although  those 
particular  vehicles  are  restricted  to  certain  streets,  has  also  the  free 
use  of  the  various  other  streets,  appropriated  to  other  lines  of  omni- 
buses, if  he  chooses  to  set  up  and  run  an  omnibus  thereon,  as  to 
Charlestown,  or  Cambridge,  or  South  Boston. 

We  cannot  doubt  that  a  by-law,  reasonably  regulating  the  use  of 
the  public  streets  of  the  city  as  to  carriages  of  an  unusually  large  size, 
or  as  to  those  which  from  the  mode  of  using  them  would  greatly  in- 
commode, if  not  entlanger,  those  having  occasion  to  use  such  public 
streets,  would  be  valid  and  legal ;  and  that  such  regulations  might  pre- 
scribe certain  streets  as  the  route  of  travel  for  such  vehicles,  and  pro- 
vide for  their  exclusion  from  certain  other  streets.  / 

2.   The  next  inquiry  is,  whether  it  was  competent  for  the  mayor  and 
aldermen  to  require  as  a  condition  precedent  to  the  setting  up  of  an   ^(jL^Cy^-y^ 
omnibus,  or  stage  coach,  to  run  from  the  centre  of  Roxbury  to  the 
central  part  of  the  city  of  Boston,  and  carrying  passengers  for  hire,   V 
the  payment  of  the  sum  stated  in  §  8  of  the  by-law  of  July  12th,  1847,  f^^*^.^ 
and  the  obtaining  a  license  as  required  in  §  2  of  the  same  ordinance. 

This  question  embraces  two  points  of  inquiry,  which  are  to  some 
extent  distinct  in  their  character  :  1.  The  right  to  demand  the  payment 
of  a  tax  or  duty  on  each  carriage  licensed,  varjing  from  one^to  twenty 
dollars,  according  to  the  different  kinds  of  carriages,  and  the  stand 
theyoccupied ;  and,  2.  The  right  to  forbid  all  persons  from  setting  up 
such  omnibuses  or  stage  coaches,  without  a  license  from  the  mayor 
and  aldermen  of  the  city  of  Boston.  l_   1 

As  to  the  requisition  of  a  paj'ment  of  money,  operating  as  it  does  as  '    ^ 
a  direct  tax  upon  the  veliicle  to  be  used,  we  cau  find  no  authority  for. 
this  provision  of  the  ordijiaiice.     Taxes  are  to  be  levied  under  the^pro- 
v i s io^n s  of  ge n e ral _  1  a \v s  . enaxU^i  b y  the  legislature.     We  look  in  vain 
lor  authointy  for  it  either  in  the  city  charter,  or  ^he  statutes  of  the 


a-»; 


^ 


258  COMMONWEALTH   V.   STODDER. 

commonwealth.     The  act  of  1847,  c.  224,  under  and  by  virtue  of  which 

this  ordinance  of  July  12th,    1847,  was  professedly  adopted,  merely 

authorized  the  mayor  and  aldermen  to  adopt  rules  and  oi'ders  "  for  the 

due  regulation,  in  such  city,  of  omnibuses,  stages,  &c."     The  power 

here  conferred  was  not  a  tax  levying  power.     The  title  of  the  act  was 

''  An  act  to  prevent  obstructions  in  the  streets  of  cities  and  to  regulate 

hackney  coaches  and  other  vehicles."     All  the  apparent  objects  of  the 

act  may  be  secured  by  due  regulations  as  to  the  time,  place  and  mode 

^     of  using  such  vehicles,  irrespective  of  any  payment  of  a  specific  duty 

^^^  or  tax  upon  them,  as  provided  in  the  ordinance.     As  a  tax,  it  would 

^      -r^  operate  unjustly  also,  as  requiring  to  be  paid  to  the  city  of  Boston  a 

N  cc*^      i  specific  duty  or  tax  upon  a  vehicle  owned  and  used  by  an  inhabitant  of 

^»  "^    I  another  town  or  city,  in  which  alone  he  should  be  taxed  for  his  personal 

\^\     I  property. 

\^'^  J  We  are  aware,  that  there  are  a  few  cases  vrhere  a  sum  of  money  has 

^     r  been  required  to  be  paid  on  obtaining  a  license  for  exercising  certain 

employments.     But  they  are  eases  directly  authorized  by  a  statute  law 
^v^^_       of  the  commonwealth.     It  would  seem  to  be  peculiarly  proper  where 
'^^'^  the  tax  would  be  a  tax  upon  inhabitants  of  various  towns,   that  it 
should  be  directly  authorized  by  a  general  law  of  the  commonwealth, 
.\.fx.^Y^*.~^    iu  the  enacting  of  which  all  the  towns  in  the  commonwealth  would  be 
heard,  and  would  act  upon  the  subject  through  their  representatives. 
•";  ^  In  the  case  of  Jioston  v.  ScJiaffer,  9  Pick.  415,  where  a  payment   of 

l^s^v^^t^        money  for  a  license  for  a  theatrical  exhibition  was  held  a  legal  pay- 
'^ent,  the  by-law  requiring  the  payment  of  money  was  held  valid  as  a 
power  clearly  conferred  by  the  statute  of  the  commonwealth,  (1821,  c. 
10,)  authorizing  the  mayor  and   aldermen  to  license  theatrical   exhi- 
bitions, "on  such  terms  as  the  mayor  and  aldernien  should  think  ex- 
pedient," aucPTipon    that    ground    was    sustained.     It    fui"nishes  no" 
;^    ^f""^^  •  authority  for  an  imposition  of  a  tax  under  the  powers  conferred  upon  the 
ifjfcd^'        mayor  and  aldermen  by  the  statute  of  1847,  c.  224,  authorizing  them 
^  n  "  to  regulate  hacknev  coaches  and  other  vehicles." 

S^  6»y^j^y.^  If  the  sum  here  required  to  be  paid  were  a  mere  provision  for  paying 
^  ly't^^;^^.-^  the  expenses  incident  to  giving  a  license,  as  was  apparently  the  statute 
?^/r*^^  6i  1796,  c.  32,  requiring  the  payment  of  one  dollar  for  each  license,  it 
^  .  f/f^"*'  might  be  unobjectionable,  if  the  requiring  the  license  was  itself  well 
(75»  *  authorized;  but  the  dissimilarity  in  the  sums  required  to  be  paid,  vary- 

' '  ing  as  they  do  from  one  dollar  to  twenty  dollars,  for  a  vehicle,  pre- 

cludes us  from  any  assumption  of  that  sort.     Nor  can  any  such  tax  be 
^  '^s*-*'''^     sustained  upon  the  ground  suggested  in  the  argument,  that  the  sum 
levied  is  not  more  than  sufficient  to  indemnify  for  the  expenses  incident 
^  to  the  supervision  of  hackney  coaches,  omnibuses,  stages,  «S:C.     In  no 

aspect  in  which  we  have  been  able  to  regard  this  part  of  the  ordinance, 
can  we  view  it  iu  any  other  light,  than  as  an  assessment  of  a  tax  upon 
the  owners  of  these  vehicles.  As  such,  the  court  are  of  opinion,  it 
was  without  legal  authority,  and  as  the  obtaining  of  a  license  in  ali 
cases  requires  this  payment,  the  ordinance,  so  far  as  it  ordains,  that 


COMMONWEALTH   V.   STODDER. 


259 


no  person  shall  set  up,  use,  or  drive,  in  the  city  of  Boston,  any  omni-, 
bus,  without  a  license  from  the  mayor  and  aldermen,  under  a  penalty 
of  not  less  than  five  nor  more  than  twenty  dollars,  every  time  sueti 
carriage  is  used,  is  illegal  and  cannot  be  enforced. 

A  similar  question  arose  in  the  case  of  Dunham  v.  Trustees  of  Roch- 
ester, 5  Cowen,  466,  where,  under  an  act  authorizing  the  trustees  of  a 
village  corporation  to  make  by-laws  ' '  in  relation  to  hucksters,  and  for 
good  government  of  the  village,"  it  was  held,  that  the  act  did  not 
authorize  a  by-law  that  hucksters  should  be  required,  before  exercising 
their  emploj'ment,  to  take  a  license,  and  be  taxed  a  sum  varying  from 
five  to  thirty  dollars. 

Upon  the  ground  of  the  requisition  of  the  payment  of  a  sum  of 
money  obviously  intended  as  a  tax  upon  the  owners  of  the  vehicles, 
the  defence  of  the  present  case  might  well  be  sustained. 

3.  But  as  the  other  branch  of  the  inquiry  has  been  fully  opened  in  3  ^'f^'^^Ar^^ 
the  argument,  we  have  proceeded  to  inquire  further  as  to  the  validity  crvv*^v^^-^ 
of  an  ordinance  of  the  mayor  and  aldermen,  forbidding  any  person  res- 


iN^t 


^ 


ident  in  another  town  from  setting  up,  using,  or  driving  an  omnibus  or 
stage  for  the  carriage  of  persons  for  hire,  from  such  other  tow^ns  to  the 
central  parts  of  the  city  of  Boston,  without  a  license  from  the  maj'or 


) 


■ju 


and  aldermen  of  the  city  of  Boston,  supposmg  no  payment  of  money 
had  been  required.     How  far  the  general  powers  conferred  by  the  city 
charter  and  the  statutes  of  the  commonwealth  may  well  authorize  the 
city  government  in  requiring  licenses  previous  to  the  exercise  of  certain 
trades  or  occupations,  by   citizens  of  Boston,  and  wholly  within  the  |  t^A.^s^'Vv 
limits  of  the  city,  we  have  not  particularly  considered.     A  long  usage'  ^L^-cnv** 
of  this  kind  has  certainly  prevailed  to  some  extent,  under  the  authority 
supposed  to  be  derived  from  the  general  power  of  the  city  government; 
but,  in  these  cases,  it  will  be  seen,  that  it  has  usually  been  vested  in 
the  city  government  by  express  enactment  by  a  statute  of  the  common- 
wealth.    Thus,  the   practice  of  licensing  hackney   coaches,   so  long  , 
practised  in  this  city,  was  directly  authorized  by  the  statute  of  1796,  '"^^^'^y 
CT'S^'tlie  licensing  of  dealers  in  second  hand  articles,  under  a  city  ,c>>f  ijVv.*-'' ■ 
ordinance,  was  authorized  by  statute  of  1839,  c.  53;  the  licensing  of 
theatrical  exhibitions  by  statute  of  1821,  c.  10;  and  the  licensiu^of 
]3orters  was  also  under  a  statute.     On  the  other  hand,  the  requiring 
of  licenses  of  common  criers,  of  those  persons  who  are  hawkers  of 
goods,  and  the  licenses  of  chimney  sweepers  were  solely  by  ordinances. 

The  requiring  a  license  before  any  person  should  be  employed  in 
removing  house  dirt  and"offal  from  the  city,  is  by  an  ordinance.     This 
latteFordinance  came  directly  before  the  court  in  the  case  of  Vandine,  ;,^ 
Petitioner,  6  Pick.  187,  and  w-as  held  a  valid  by-law. 

In  the  case  of  Kightingale,  Petitioner,  11  Pick.  168,  a  by-law  re- 
quiring a  license  before  opening  for  sale  certain  commodities  in  certain 
streets  was  held  valid. 

Without  calling  in  question  the  power  of  the  mayor  and  aldermen 
to  establish  by^-laws  forbidding  the  exercise  of  certain  employments. 


■  '^ 


^  (^- 


t 


260  COMMONWEALTH   V.   STODDER. 

without  a  license  from  tbem,  by  persous,  inhabitants  of  Boston,  and 
whose  business  is  local,  and  to  be  carried  on  in  Boston,  such  by-laws  to 
be  always  reasonable  in  their  character,  and  such  as  impose  no  unreason- 
able restraints  upon  business  or  trade,  but  such  as  are  required  for  the 
public  health  or  public  safety;  we  have  more  particularly  considered 
the  question  of  the  authority  of  the  mayor  and  aldermen  of  the  city  of 

o  '  iBoston  to  enact  an  ordinance  forbidding  persons,  inhabitants  of  other 

jtowns  and  residing  elsewhere,  from  setting  up  stage  coaches  and  omni- 

^  [buses  for  the  conveyance  of  passengers  for  hire" from  such  other  towns 

""^^vwsAvfci^vto  Boston,  or  from  Boston  to  other  parts  of  the  commonwealth,  without 
,      iC^**^-  a  license  from  the  ma^'or  and  aldermen  of  Boston. 

iJ^^T"^  '^^^^  power  claimed  here,  if  really  understood  by  the  city  government 

2u^r*^  to  the  extent  embraced  by  the  terms  of  the  ordinance,  would  be  the 

A  AXv^  power  to  control  every  stage  coach  or  vehicle  used  for  carrying  people 

1^  V"^     for  hire,  though  commencing  its  route  at  the  most  extreme  limits  of 

A     ?  the  commonwealth,  and  terminating  its  route  in  the  city  of  Boston. 

..^  Its  purpose  was  probably  much  more  limited,  and  had  particular  refer- 

ence to  the  numerous  lines  of  omnibuses  running  from  the  adjacent 
towns  into  the  city  of  Boston.  This  mode  of  conveyance  is  only  the 
conveying  by  stage  coaches  in  an  improved  and  more  convenient 
vehicle.  It  is  a  system  of  great  public  convenience,  furnishing  facili- 
ties for  passing  from  the  adjacent  cities  and  towns,  and  ought  not  to 
be  unnecessarily  interfered  with  by  the  city  authorities  of  Boston. 
The  much  greater  part  of  the  whole  route  travelled  may,  and  in  some 
cases  does,  lie  without  the  limits  of  the  city  of  Boston. 

Considering  the  case  to  be  that  of  an  inhabitant  of  Roxbury,  settin,s; 
up  his  carriage  in  Roxbury,  and  using  it  for  the  purpose  of  conveying 
persous  from  Roxbury  to  the  city  of  Boston,  and  from  Boston  to 
Roxbury,  we  deem  tlie  employment  one  not  within  the  authority  oud 
control  of  the  mayor  and  aldermen,  to  any  such  extent  as  to  authorize 
them  to  require  a  license,  before  exercising  the  employment  of  pr(> 
prietor  of  such  omnibus,  for  the  conveyance  of  passengers  to  and  from 
the  central  part  of  the  city  of  Boston. 

We  do  not  mean  to  be  understood  that  no  by-law  can  properly  be 
made,  extending  to  inhabitants  of  other  towns,  coming  within  the 
limits,  and  in  reference  to  acts  within  the  city.  Corporations,  having 
a  territorial  jurisdiction,  have,  to  some  extent,  the  power  to  make  by- 
laws affecting  all  persous,  who  come  within  their  territorial  limits.  It 
was  so  held  in  the  case  of  Vandlne,  Petitioner^  6  Pick.  187,  and  in 
Nightingale's  case,  11  Pick.  168,  already  cited,  but  the  acts  there  for- 
bidden had  exclusive  reference  to  acts  affecting  the  city.  The  city 
government  forbade  all  persons,  except  such  as  were~^ily  licensed 
therefor,  to  remove  offal  and  dirt  from  the  city,  and  this  by-law  was 
held  a  valid  by-law,  as  respects  strangers  coming  into  the  city,  and 
there  doing  the  acts  forbidden  by  the  ordinance.  So  also  as  to  sales 
of  certain  articles  in  certain  streets  near  the  Faneuil  Hall  market. 
The  case  before  us  is  of  a  different  character.     The  business  of 


KENNELLY   V.    JERSEY   CITY.  261 

carrying  persons  for  hire  from  town  to  town,  in  stage  coaches  andj    ^-*-^-^  ^^ 


omnibuses,  is  not  so  far  a  territorial  occupation  or  employmeut,  as  will 
authorize  the  citj'  government  of  Boston  to  require  a  license  from  the 
iha^'or  and  aldermen  of  Boston,  before  exercising  that  employment. 
A  by-law,  to  that  effect,  is  an  unnecessary  restraint  upon  the  business' 
of  those  carrying  passengers  for  hire,  and  not  binding  upon  inhabit- 
ants of  other  towns.  For  this  reason,  the  by-law  must  be  held  invalid 
as  respects  the  defendant. 

The  exceptions,  therefore,  to  the  rulings  of  the  municipal  court,  are 
sustained,  to  such  an  extent,  as  to  require  the  verdict  to  be  set  aside, 
and  new  trials  to  be  had. 


'  \  STATE  EX  REL.  KENNELLY  v.  JERSEY  CITY. 

o    JJJ^  1894.     57  N.  J.  L.  293. 

^^^         Dixon,  J.^     The  boar^  of^stiegt  and  water  commissioners  of  Jersey 
■  jy^  City    having,  on  March'  5th,   1894,   passed  an  ordinance   giving  the 

/^  L  AT^,,*U       XJn^lr.^.,      /^^.^^4-rT      ■Dnil,»r^»»      r^^.v^.^««Tr      ^^/-.».■r^^^l:•c!l/->^^      tr>     IniT    fl-nota 


y. 


\y.'\   North  Hudson   County  Railway  Company  permission  to  lay  tracks, 
^A       erect  poles  and  siring  wires  on  several  sti-eets  of  the  city,  among  them 
^V(jrove~street,   from  Pavonia   avenue  to  the  Hoboken  ] 
""^     ecutors,   owning   property   on  that  street,  sued  out  this  certiorari  to 


>^ 


^Grove""street,   from  Pavonia   avenue  to  the  Hoboken  line,  the  pros- 
ecutors,  owning   property   on  th 
test  the  legality  of  the  ordinance. 


We  proceed  now  to  examine  the  objections  presented  by  the  pros-~\    - 


r^-^j 


^ 


ecutors.  v^'-*^ 

'■^P^\      The  firstis  that  the  ordinance  was  passed  without  notice  to  the  own-      ^kj,^*.^^ 
V^)k   ers  of  property  along  the  line  of  the  street.  rwvsj-wa 

^  ^  It  is  impossible  to  frame  a  universal  rule  for  determining  when  in-     t. 


rJ^ 


dividuals  are  absolutely  entitled  to  notice  of  the  proceedings  of  public  0 

agencies.  Like  "due  process  of  law,"  it  seems  to  be  a  mixed  question 
of  abstract  justice  and  established  usage.  Sometimes  it  is  said  that 
such  notice  is  requisite  in  all  judicial  proceedings,  but  not  in  those 
which  are  legislative  or  ministerial.  With  regard,  however,  to  the 
acts  of  corporate  bodies  invested  with  governmental  powers,  these 
terms  are  often  very  shadowy,  and  sometimes  appear  to  be  applied  to 
such  acts  merely  on  a  hypothesis  that  notice  to  private  persons  is  or  is 
not  deemed  essential.  Generally,  I  think,  it  may  be  said  that  whenj  rKc 
private  rights  are  involved,  notice  must  be  given  to  the  parties  interested. 
YeF^not  always ;  for  the  question  whether  the  power  of  eminent 
domain  shall  be  exerted  over  the  property  of  A  or  of  B  is  conclusively 
decided    without   notice   to   either,    although  that  certainly  involves 

iPart  of  the  opinion,  discussing  tlie  question  whether  the  trolley  system  of  pro- 
pelling street  cars  is  within  tlie  highway  easement,  is  omitted. — Ed. 


262  KENNELLY   V.   JERSEY    CITY. 

private  rights.     The  counterpart  of  the  general  rule  above  suggested 
is,  I  believe,  of  universal  application,  that,  when  private  rights  are  not 
.     \x     involved,  notice  to  private  persons  is  not  essential. 

''^  T\      >      The  matters  dealt  with  in  the  ordinance  now  under  review,  and  of 

s>^  ^-T     which  complaint  is  made,  the  adoption  of  the  trolley  system  _and.JJifi 
■ipJ^  ,\  1  laying  of  double  tracks  in  the  street,  do  not  invoR^e  private  rights. 

>'^^^^  I  "  Jt  may  be  that  the  legitimate  use  of  the  street  by  the  abutting  own- 

ers will  interrupt  the  passage  of  cars  upon  double  tracks  more  fre- 
quently than  it  would  if  there  were  only  a  single  track,  but,  as  we 
have  seen,  the  private  right  will  not,  on  that  account,  be  diminished ; 
the  public  using  the  tracks  must  put  up  with  the  interruption.  Haffertij 
V.  Central  Traction  Co.,  147  Pa.  St.  579.  If  this  ordinance  defined 
the  position  of  the  poles,  and  thus  determined  whether  the  possible  in- 
convenience which  they  might  occasion  should  be  borne  by  one  abut- 
ting owner  rather  than  another,  then  perhaps,  as  is  intimated  in  the 
equity  cases  before  mentioned,  private  rights  would  be  so  concerned 
as  to  require  notice ;  but  the  ordinance  attempts  no  such  location. 
Notice    therefore    was    not    necessary,    unless    prescribed  by  the 

^'*^  statutes  under  which  the  municipal  authorities  were  acting.     These 

statutes  are  the  charter  of  the  Jersey  City  and  Hoboken  Horse  Rail- 
road Company  (Pamph.  L.  1859,  p.  550),  an  act  transferring  all  its 
powers,  privileges  and  franchises  to  the  North  Hudson  Count}'  Rail- 
way Company  (Pamph.  L.  1874,  p.  1264),  and  a  supplement  to  "An 
act  concerning  street  railroad  companies"  (Pamph.  L.  1893,  p.  241). 


:^ 


\'  VQ^  None  of  these  acts  directs  notice  to  be  given. 


1^  \>  The  prosecutors'   next  objection  is  that  the  company  has  not  filed  a 

^,^,V*'**0   map  or  survey  of  its  route.     The  coniplete  answer  is  that  none  need  be 
\>»    filed.     Pamph.  L.  1874,  p.  1264,  §  4. 

Another  objection  is  that  in  authorizing  a  double  track  the  ordinance 
^j/i^  ^j^  ^     is  unreasonable,   in  view  of  the  narrowness  of  the  street  and  its  other 
tJ^  uses.     The  act  of  1859,  above  referred  to  (Pamph.  L.,  p.  550,  §  7),  ex- 

pressly empowers  the  city  authorities  to  designate  the  number  of 
tracks  that  shall  be  laid  in  any  street,  lane  or  avenue  of  the  city. 
This  delegation  of  power  is  too  specific  to  permit  the  court  to  overturn 
/J^tjLVv,*'  *^®  ordinance  on  the  ground  stated,  ffaynes  v.  Cape  May,  21  Vroom, 
55 ;   Trenton  Horse  Railroad  Co.  v.  Trenton,  24  id.  132. 

It  is  further  objected  that  the  ordinance,  in  empowering  the  company 

to  construct  "any  and  all  necessary^ ciirves,  sidings,  crosaavers  and 

lA^'**'*''^  switches,  that  may  be  required  for  the  proper,  safe  and  economical  op- 

\K^^i        eration  of  the  railway,"  is  unreasonably  vague,  and  delegates  a  dis- 

VnA*"*-^  ~       cretion  which  the  municipal  board  itself  was  bound  to  exercise. 

sjX^U^'  This  objection  is  valid.     The  act  of  1859,   section  7,  and  the  act  of 

-V       1874  (Pamph.  L.,  p.  1264,  §  3),  forbid  the  laying  of  any  track  or  tracks 

KS^sX^^^      along  any  street,   unless  the  consent  of  the  governing  municipal  bod}' 

^  xf^^      be  first  obtained.     "We  think  this  language  fairly  implies  that  the  pub- 

^v*^      '      lie  body    shall    know   what   particular   tracks  the  company  proposes 

/r    \,M^     to  lay  before  it  determines  whether  it  will  consent  or  not.    Only  in 


KENNELLY   V.   JERSEY    CITY. 


263 


e»* 


.tX 


dUA 


this  -way  can  the  public  representatives  give  to  public  interests  that 
protection  which  the  legislature  designated. 

The   last   objection    to   be   considered  is  that  the   ordinance   does\^^ 
not   prescribe  the  manner  in  which  or  places  where  the   poles    shall 
be  located,  or  the  manner  in  which  wires  shall  be  strung  thereon. 

This  objection  rests  npon  the  third  section  of  the  supplement  of 
1893,  before  mentioned  (Pamph.  L.,  p.  241),  which  enacts  that  the 
municipal  authorities  may,  when  they  deem  it  proper,  authorize  the 
use  of  poles  to  be  located  in  the  public  streets,  with  wires,  &c., 
*"and  when  a  board  grants  such  authority  it  mc^Mn  such  case  prescribe 
the  manner  in  which  and  the  places  where  such  poles  shall  be  located, 
ancV  the  manner  in  which  the  wires  shall  be  strung  thereon,~liud  the 
same  may  be  authorized  and  prescribed  by  ordinance." 

The  question  at  once  arises  whether  the  language,  "it  may  in  such  lcv_  ti;^ 
case  prescribe  the  manner,"  &c. ,  imposes  a  duty  on  the  public  body,  ' 
or  merely  clothes  it  with  a  discretionary  power. 

Ordinarily  the  word  "  may"  implies  permission  only,  but  often  it  is 
construed  to  be  mandatory.  It  is  noticeable  that  in  this  very  section 
the  term  is  used  in  both  senses.  In  the  first  clause,  that  the 
municipal  authorities  may,  when  they  deem  it  proper,  authorize  the 
use  of  poles,  &c.,  it  clearly  was  intended  to  vest  the  authorities 
with  discretionary  power ;  while  in  the  last  clause,  "  and  the  same  may 
be  authorized  and  prescribed  by  ordinance,"  the  term  is  mandatory, 
and  in  no  other  mode  can  the  power  be  exercised.  The  sense  of  the 
word  in  the  middle  clause  now  under  consideration  is  less  clear, 
but  I  think  it  is  mandatory.  The  general  rule  is  that  this  fore 
will  be  given  to"~tW-^5rtl  whenever  it  is  employed  in  a  statute  to 
delegate  a  "power,  the  exercise  of  which  is  important  for  the  pro- 
tectiou' of  puljtic  or  private  interests.  Sedgw.  Stat.  &  Const.  L.  40' 
^'>  York  v.  Fi-'rzi',  3  Hill  612;  Central  Land  Co.  \.  Bayonne,  27 
Vroom  297  ;  14  Am.  &  Eng.  Encycl.  L.  979.  It  is  undoulitedly  of 
importance  to  public  interests  that  the  poles  and  wires  which  arelo  '^.t«-w>.p 
convey  so  dangerous  an  agent  as  electricity  through  the  public  streets       .u^iAr 

v. 


should  be  properly  placed  and  constructed.  This  is  not  secured  by 
the  provisions  of  this  ordinance,  which  merely  require  the  poles  to 
be  erected  on  the  sidewalk  adjacent  to  the  curb-line,  and  the  wires 
to  be  suspended  seventeen  feet  above  the  grade  of  the  street.  For 
this  reason  also  the  ordinance  is  illegal. 

The  defendants  suggest  that  the  prosecutors  have  no  standing  to 
question  the  legality  of  the  ordinance.  But  when  it  is  remembered 
that  the  railway  company  is  intending  to  place  tracks,  poles  and 
wires  upon  the  lands  of  the  prosecutors,  and  'that  it  has  no  right 
to  do  so,  except  under  public  authority  lawfully  conferred,  it  becomes 
evident  that  the  prosecutors  are  entitled  to  question  the  legality 'of 
the  authorization.     Rend  v.  Camden,  25  Vroom  347. 

So  far  as  it  purports  to  affect  the  lands  of  the  prosecutors  the  or- 
dinance must  be  set  aside.  a  . 


Cvts-*- 


264  HAWES   V.   CHICAGO.  X^.aP^"'^     .eiAt^^^''''^^^^>^^        *" 

HAWES  V.  CHICAGO.     V^^^  ^         ^^^"^^    ^ 
1895.     158  ///.  653.  .•    -pO^t^^^f*^^    rf!j^^^^^  *  ' 

Baker,  J.     This  is  an  appeal  from  a  judgment  of  confirmation  of  a  >  *^ 
special  assessment  made  under  an  ordinance  of  the  city  of  Chicago  -f-'*-^' 
passed  March  7,  1892,  and  providing  for  the  construction  of  a  cement  it  v^'^*" 
sidewalk  on  Fiftieth  street,   from  Lake  avenue  to  Drexel  boulevard.  \j'Vr^ 
The  commissioners  appointed  to  assess  the  cost  and  expenses  of  the  i/v^^ 
improvement  upon  the  property  benefited  thereby,  returned  into  court    V-*^ 
an  assessment  roll,  in  which  the  property  here  in  question,  then  owned 
by  John   H.    Dunham,    since  deceased,    was   assessed  in  the  sum  of 
$1915.50.     Various  objections,  in  writing,  were  filed  by  said  Dunham 
and  overruled  by  the  court.     The  question  of  benefits  was  submitted 
to  a  jury,  and  the  jury,  in  their  verdict,  reduced  the  assessment  on  the 
property  to  $1638.75.     Motions  for  a  new  trial  and  in  arrest  of  judg- 
ment, as  well  as  motions  to  dismiss  J;he  petition  and  to  cancel  the  as- 
sessment, were  made  by  the  objector  and  overruled  by  the  court,  and 
exceptions  taken,  and  the  court  entered  judgment  of  confirmation  for 
the  amount  fixed  by  the  verdict  of  the  jury,  and  the  objector  perfected 
an  appeal  to  this  court.     John  H.  Dunham,   the  objector,  thereafter 
died,  and  his  death  was  suggested,  and  by  leave  of  court  Helen  Elizabeth 
Dunham  Hawes  and  Mary  Virginia  Dunham,  who  are  his  heirs-at-law 
and  devisees  under  his  will,  now  prosecute  the  appeal. 

It  is  claimed  by  appellants  that  the  ordinance  providing  for  the  con- 
struction of  the  cement  sidewalk,  and  under  which  the  assessment  was 
made,  is  unreasonable,  unjust  and  oppressive,  and  therefore  void.  The 
uncontradicted  evidence  in  the  case  shows  that  the  tract  of  land,  the 
south  fifty  feet  of  which  is  assessed  for  this  improvement,  is  a  twenty- 
acre  tract,  having  a  frontage  of  1256  feet  along  Fiftieth  street,  where 
it  is  proposed  to  construct  this  cement  sidewalk;  that  there  is  not  a 
bouse  or  a  building  of  any  kind  upon  it,  and  that  it  is  an  unsubdivided 
tract  of  land,  and  the  ^ilyuse  to  which  it  is  put  is  that  of  a  field  for 
raising  hay.  Only  five  months  before  the  passage  of  this  ordinance  for 
tlie  construction  of  a  cement  sidewalk,  the  devisor  of  the  appellants 
in  this  ease,  in  compliance  with  a  prior  ordinance  of  the  city  duly 
passed  for  that  purpose,  constructed  and  put  down  along  the  line  of 
this  street,  in  the  very  place  where  this  cement  sidewalk  is  to  be  placed, 
a  wood  sidewalk  six  feet  in  width,  made  of  plank  laid  crosswise  on 
stringers  or  joists,  in  strict  conformity  to  the  regulations  and  require- 
ments of  the  city,  and  this  plank  sidewalk,  at  the  time  this  ordinance 
on  which  the  present  proceedings  are  based  was  passed,  and  at  the  time 
this  case  was  heard  in  the  coui't  below,  was  in  good  order  and  condition. 
The  uncontradicted  evidence  further  shows  that  the  street  along  which 
it  is  proposed  to  construct  this  cement  sidewalk  has  never  been  improved 
by  the  city.  It  is  neither  curbed  nor  paved,  sewered  nor  watered, 
surveyed  nor  graded.     If  it  is  to  be  considered  as  a  street  sixty-six 


HAWES   V.   CUICAGO. 


265 


1 


feet  wide,  then  there  is  a  line  of  telegraph  poles  planted  right  through 
tlie  center  of  it,  and  the  north  thirtj^-three  feet  of  it  has  never  been 
formally  dedicated  by  the  owner  to  public  use  nor  condemned  by  any 
municipal  corporation,  and  if  the  public  have  any  right  to  it  at  all,  it  is 
a  right  by  prescription  or  by  implied  dedication. 

Such  was  and  is  the  condition  of  this  street  in  front  of  appellants' 
property,  and  yet,  as  appears  from  the  record  of  the  case,  the  common 
council  of  the  city  of  Chicago,  only  five  months  after  the  construction, 
at  a  great  expense,  of  a  new  plank  sidewalk,  built  in  conformity  with 
the  order  of  the  city  council,  1256  feet  long,  passed  a  second  ordinance 
ordering  this  new  plank  sidewalk  torn  up  and  a  cement  walk,  at  an  as- 
sessed expense  of  $1915.50,  or  S1G38.75,  put  down  in  its  place.  It  is 
admitted  by  the  city  —  at  least  not  denied  —  that  this  plank  or  wooden 
sidewalk,  at  the  time  the  ordinance  for  the  cement  sidewalk  was  passed 
and  at  the  time  this  case  was  heard  in  the  court  below,  was  in  good  or- 
der and  condition,  and  will  answer  equally  as  well,  for  the  purposes  of 
travel,  as  a  cement  walk.  Now,  can  it  for  a  moment  be  contended 
that  it  is  not  unreasonable,  unjust  and  0[)ijressive  to  compel  the  owner 
oTa  vacant  twent3'-acre  lot  first  to  construct  and  pay  for  a  wood  side- 
walk^and  then,  within  less  than  six  months,  and  when  it  is  iu  substan- 
TialTy  as  good  condition  as  when  first  built,  and  in  all  respects  safe, 
com'ement  and  sufficient  for  public  use  and  travel,  take  it  up,  throw' 
TT'away  and  put  down  another  in  its  place  at  an  expense  of  over  $1600? 
It  seems  to  us  that  it  cannot  be,  especially  when  we  take  into  consid- 
eration the  fact  that  the  street  has  never  been  improved,  curbed,  graded, 
paved  or  sewered.  And  further ;  it  is  clear,  from  the  evidence  in  the 
case,  that  if  this  judgment  should  be  affirmed  and  appellant  compelled 
to  take  up  the  wood  sidewalk  and  put  down  one  of  cement,  the  cement 
sidewalk  will  be  ruined  by  putting  in  the  house  drains  every  twenty-five 
feet  along  the  line  of  the  street,  or  at  least  seriously  injured,  and  when- 
ever the  street  is  improved  and  dwellings  are  constructed  along  the  line 
of  the  walk  the  walk  itself  is  quite  likely  to  be  destroyed. 

An  ordinance  must  be  reasonable,  and  if  it  is  unreasonable,  unjust 
audToppressive  the  courts  will  hold  it  invalid  and  void.  {City  of  Chicago 
V.  Eiimpff,  45  111.  90;  Tvgman  v.  (7%  of  Chicago,  78  id.  405).  The 
question  of  the  reasonableness  or  unreasonableness  of  a  municipal  or^ 
dinance  is  one  for  the  cfecision  of  the  court,  and  in  determining  that 
question  the  court  will  have  regard  to  all  the  existing  circumstances  or 
contemporaneous  conditions,  the  objects  sought  to  be  obtained,  and  the 
necessity  or  want  of  necessity  for  its  adoption.  (Toledo,  Wabash  and 
Western  Railway  Co.  v.  City  of  Jacksonville,  67  111.  37;  City  of  Lake 
Vieivx.  Tate,  130  id.  247  ;  1  Dillon  on  Mun.  Corp,  sec.  327.)  And  even 
where  the  power  to  legislate  on  a  given  subject  is  conferred  on  a  muni- 
cipal corporation,  yet  if  the  details  of  such  legislation  are  not  prescribed 
by  the  legislature,  there  the  ordinance  passed  in  pursuance  of  such  power 
must  be  a  reasonable  exercise  thereof,  or  it  will  be  pronounced  invalid, 
1  Dillon  on  Mun.  Corp.  sec.  328;  City  of  St.  Paul  v.  Colter,  12  Minn.  41 ; 


266  HAWES    V.    CHICAGO. 

Dunham  v.  Trustees  of  Rochester,  5  Cow.  462;  Breninger  v.  Beloldere, 
U  N.  J.  Law,  350. 

lu  Cooley  on  Taxation  (p.  428)  it  is  said :  "A  clear  case  of  abuse  of 
legislative  authority  in  imposing  the  burden  of  a  public  improvement  on 
persons  or  property  not  specially  benefited  would  undoubtedly  be  treat- 
ed as  an  excess  of  power,  and  void."  In  Allen  v.  Drew,  44  Vt.  174, 
ftXki^*^''  the  court,  by  Redpield,  J.,  says:  "We  have  no  doubt  that  a  local 
lassessraent  may  so  transcend  the  limits  of  equality  and  reason  that  its 
exaction  would  cease  to  be  a  tax,  or  contribution  to  a  common  burden, 
and  become  extortion  and  confiscation.  In  that  case  it  would  be  the 
aluty  of  the  court  to  protect  the  citizen  from  robbery  under  color  of  a 
better  name."  In  Wistar  v.  Philadelphia,  80  Pa.  St.  505,  Chief  Justice 
Agnew  says:  "But  if  we  say  the  city  may  change  its  pavements  at 
pleasure,  and  as  often  as  it  please,  at  the  expense  of  the  ground  owner, 
we  take  a  new  step,  and  there  must  be  explicit  legislation  to  author- 
ize such  taxation.  If,  while  the  pavement  is  good  and  stands  in  no 
need  of  repair,  the  city  may  tear  it  up,  relay,  and  charge  the  owner 
again  with  one  excessively  costly,  it  would  be  exaction  —  not  taxation. 
We  are  not  at  liberty  to  impute  such  a  design  to  the  legislature,  unless 
it  has  plainly  expressed  its  meaning  to  do  this  unjust  thing."  And  in 
Wistar  Y.  Philadelphia,  111  Pa.  St.  601,  it  is  held  that  where  a  property 
owner  has  well  and  properly  set  curb-stones  in  front  of  his  property, 
at  his  own  expense,  on  the  proper  line,  in  accordance  with  the  style  in 
common  use,  and  they  are  in  good  order  and  repair,  the  expense  of  re- 
placing them  with  others  cannot  be  provided  by  an  assessment  upon 
his  propert}'.  In  Corrigan  v.  Gage,  68  Mo.  541,  it  was  held  that  the 
ordinance  for  the  paving  of  the  sidewalk  there  in  question  was  unreason- 
able and  oppressive  and  subject  to  judicial  inquiry,  because  such  side- 
walk was  in  an  uninhabited  portion  of  the  city  and  disconnected  with 
any  other  street  or  sidewalk,  and  the  judgment  of  the  court  below  was 
reversed.  In  City  of  Bloomington  v.  Chicago  and  Alton  Railroad  Co., 
134  111.  451,  this  court  held  that  where  the  ordinance  is  grossly  un- 
reasonable, unjust  and  oppressive,  that  may  be  shown  in  defense  of  the 
application  for  confirmation.  In  City  of  Bloomington  v.  Latham,  142 
111.  462,  we  held  that  an  ordinance  directing  that  the  cost  of  the  land 
taken  or  damaged,  or  both,  should  be  assessed  upon  and  collected  from 
the  lands  abutting  upon  the  proposed  alley  or  street,  in  proportion  to 
the  frontage  thereof,  was  unreasonable  and  void.  And  in  Davis  v.  City 
of  Litchfield,  145  111.313,  and  PaZmer  v.  City  of  Danville,  154  id.  156^ 
ordinances  levying  special  taxes  for  local  improvements  were  held  to 
be  unreasonable,    arbitrary  abuses  of  power,  and  void. 

The  rule  is,  that  it  requires  a  clear  and  strong  case  to  justify  a  court 
in  annulling  the  action  of  a  niuuieipal  corporation,  acting  within  the  ai)- 
parent  scope  of  its  authority.  But  in  our  opinion  such  a  case  appears 
in  tills  record.  We  think  that  the  ordinance  in  question,  in  so  far  as 
and  to  the  extent  that  it  affects  the  property  of  appellants,  is  unrea- 
sonable, unjust  and  oppressive,  and  therefore  void. 


EX   PARTE    McCARVER.  267 

The  judgment  of  confirmation  as  to  the  property  of  appellants  is  re- 
versed, and,  the  ordinance  being  void  as  to  such  property,  the  cause 
will  not  be  remanded.  r\ 

.   ,,  W^-T_—  ^  \       Judgment  reversed. 


^  yy^'l^^'''^^^  Ex  Parte   McCARVER, 


1898.     39  Tex.  Cr.  448. 

Henderson,  J.^  This  is  an  appeal  from  a  proceeding  under  a 
writ  of  habeas  corpus.  It  appears  in  the  city  of  Graham,  Young 
county,  the  city  council  have  passed  what  is  termed  a  "jcurfew 
ordinance." 

•  ••■••••• 

That  after  said  ordinance  went  into  effect  the  relator,  a  young  man 
19  years  of  age,  was  found  by  the  city  marshal  of  the  city  of  Graham 
on  the  street  more  than  fifteen  minutes  after  the  city  marshal  had 
rung  the  curfew  bell  at  the  Baptist  Church,  in  said  city,  on  the  night 
of  the  18th  of  April,  1898.  That  said  marshal  held  and  detained  him 
for  a  violation  of  said  ordinance.  He  sued  out  a  writ  of  habeas  corpus, 
and,  upon  an  examination  of  the  case,  he  was  remanded  by  the  county 
judge,  and  he  now  prosecutes  this  appeal. 

The  question  here  presented  is  as  to  the  legality  of  said  ordinance. 
If  it  be  such  a  one  as  the  city  council  had  a  right  to  pass,  then  tlie  ,       r\   Vt 
relator  is  entitled  to  no  relief;  otherwise  he  is.     It  appears  that  a  dis4  y"'*'*^^  ^ 
tinction  is  made  between  ordinances  passed  under  an  express  grant  orl  O^-^'^-' 
power  by  the  Legislature  and  ordinances  which  are  merely  passed  under! 
a  general  power.     As  to  the  former,  courts  are  not  inclined  to  inquire  \  \-^^'^-'>>* 
into  their  reasouability,  but  as  to  the  latter,  if  an  ordinance  does  not  V^'N^A.*-n_ 
appear  to  be  reasonable,  the  courts  will  declare  them  void.     See  17  '        ''-o- 
Am.  and  Eng.  Enc.  of  Law,  p.  247,  and  authorities  there  cited ;  Cool. 
Const.  Lim.  4  ed.,  pp.  243,  244,  and  note. 

"We  will  treat  the  question  on  the  proposition  as  to  whether  or  not, 
conceding  that  the  municipality  has  authority  under  its  general  powers 
to  pass  any  ordinance  that  is  reasonable  to  preserve  the  public  peace 
and  to  protect  the  good  order  and  morals  of  the  community,  the  ordi-  '■^(,_^^lr« 
nance  in  question  is  reasonable.     We  hold  that  it  is  not;  that  it  is t[,,,y..jujb-- 
paternalistic,  and  is  an  invasion  of  the  personal  liberty  of  the  citizen..  F  If-^^-*^ 
Tt  may  be  that  there  are  some  bad  boys  in  our  cities  and  towns  whose     '»'^-«»-*«^ 
parents  do  not  properly  control  them  at  home,  and  who  prowl  about 
the  streets  and  alleys  during  the  nighttime  and  commit  offenses.     Of 
course,  whenever  they  do,  they  are  amenable  to  the  law.     But  does  it 
therefore  follow  that  it  is  a  legitimate  function  of  goverment  to  restrain 
them    and   keep   them  off  the   streets  when  they  are  committing  no 

1  Argument  and  part  of  the  opinion  omitted,  —  Ed. 


268  STATE    V.   BOARDMAN. 

offense,  and  when  they  may  be  on  not  only  legitimate  errands,  but  en- 
gaged in  some  necessary  business.  At  common  law  a  conspiracy  was 
an  indictable  offense,  and  under  our  statute  a  conspiracy  to  do  certain 
things  is  an  offense.  If  persons  go  upon  the  street,  whether  under  or 
over  age,  in  pursuance  of  a  conspiracy  to  commit  burglary  or  some 
other  offense,  they  are  indictable.  But  it  is  not  claimed  here  that  the 
going  upon  the  streets  by  a{)pellaut  was  in  pursuance  of  any  conspiracy 
to  commit  any  offense.  We  understand  it  to  be  made  unlawful  for  any 
person  under  21  years  of  age  to  go  upon  the  streets  after  9  o'clock  a"t 
night,  or,  more  strictly  speaking,  later  than  fifteen  minutes  after  the 
ringing  of  what  is  called  the  ' '  curfew  bell "  provided  for  by  the  ordi- 
nance. True,  some  exceptions  j£e  made.  For  instance  a  person  under 
21  years  of  age  may  go  upon  the  streets  with  his  parent  or  guardian, 
and  such  person  can  go  upou  the  streets  in  search  of  the  services  of  a 
physician,  but  these  are  the  only  exceptions.  We  can  well  imagine  a 
number  of  other  exceptions.  Indeed,  so  numerous  do  they  occur  to  us 
that  they  serve  themselves  to  bring  into  question  the  reasonability  of 
the  law.  A  minor  may  be  unavoidably  detained  away  from  home  until 
after  night,  yet  in  passing  along  the  streets  on  his  way  to  his  home  he 
commits  an  offense.  He  may  be  at  church  or  at  some  social  gathering 
in  the  town,  and  yet  when  the  curfew  bell  tolls  in  the  midst  of  a  sermon 
or  exhortation,  he  would  be  compelled  to  leave  and  hie  himself  to  his 
home,  or,  if  at  a  social  gathering,  he  must  make  his  exit  in  haste.  He 
could  not  be  sent  by  his  parents  to  a  drugstore,  or,  for  that  matter, 
on  any  errand,  save  and  except  for  a  physician.  The  rule  laid  down 
here  is  as  ligid  as  under  militaryjaw,  and  makes~tIaeTolling  of  the 
_curfew  bell  equivalent  to  the  drum  taps  of  thu'  camp.  In  our'opiuion. 
itls  an  undue  invasion  of  the  personal  liberty  of  the  citizen,  as  the  boy 
or  girl  (for  it  equally  applies  to  both)  have  the  same  rights  of  ingress 
and  egress  that  citizens  of  mature  years  enjoy.  We  regard  this  char- 
acter of  legislation  as  an  attempt  to  usurp  the  parental  functions,  and 
as  unreasonable,  and  we  therefore  hold  the  ordinance  in  question  as 
illegal  and  void.  See  City  of  St.  Louis  v.  Fitz,  53  Mo.  582;  Citi/  'of 
Vfiwago  V.  Trotter,  (111.  Sup.)  26  N.  E.  359.     The  relator  is  ordered     O^t^ 

'''"''^'°'^'-  ^^^^.-:^^  (W>^./A 

STATE  V.   BOARDMAN.  -^r^f^t-MS^ 

\  1899.     93  Me,  73.  •.  .^4^f>^\  d 

WiswELL,  J.     Complaint  for  the  alleged  violation  of  the  following  ^ 

ordinance  or  by-law  of  the  town  of  Rockport:  "  All  of  that  portion  o^ 
Union  Street  in  Rockport  situated  Northerly  and  Westerly  and  within 
fifteen  (1^  f eei.of  the  Northerly  and  Westerly  rail  of  the  Electric  R.  R. 
track,  is  hereby  set  apart  and  designated  as  the  portion  of  said  street 
over  and  upon  which  lime-stone  may  be  transported  on  wheels,  also  all 
other  material  on  wheels,  where  the  load,  exclusive  of  cart,  wagon  or 


STATE   V.   BOARDMAN.  269 

vehicle,  exceeds  2,500  pounds  in  weight ;  and  all  persons  are  prohibited 
from  using  any  other  portion  of  said  street  for  the  purposes  aforesaid ; 
and  any  person  engaged  in  transporting  lime-stone  on  wheels  or  other 
material  of  the  weight  aforesaid,  on  wheels,  using  any  other  portion  of 
said  street  for  such  purpose,  shall  be  fined  not  less  than  two  nor  more 
than  five  dollars  for  each  offense,  to  be  recovered,  by  complaint,  to  the 
use  of  the  town  of  Rockport." 

The  respondent  attacks  the  validity  of  this  by-law  upon  three  grounds, 
namel^v'T^ecause  it  had  never  been  approved  by  the  county  commis- 

^-^  sioners  of  Knox  county  or  by  a  justice  of  the  Supreme  Judicial  Court; 

[2y  because  it  is  inconsistent  with  the  laws  of  the  State  ;  and  because  it  is 
unreasonable.  Must  such  an  ordinance  be  approved  by  the  county 
commissioners  or  by  a  justice  of  this  court?     We  think  not.  r^  Aw  /  ' 

The  legislature  of  this  state  has  by  various  enactments  at  differently  O^^^ 
times  given  to  municipalities  the  power  to  adopt  by-laws  in  regard  to  ^*^ 

a  large  number  of  matters,  all  of  which  different  enactments  have  been  (y^^a-t-*-^ 
condensed  into  c.  3,  §  59,  of  the  present  revised  statutes.  As  that  Vj^^  ^ 
section  now  reads  municipalities  are  authorized  to  adopt  such  ordi-  rt^-,^,^ 
nances  for  the  purposes  named  in  twelve  separate  paragraphs.  I^y,'C\pj^^jjU. 
paragraph  I,   "  For  managing  their  prudential  affairs^'  such  by-laws  -    . 

must  be  approved  by  the  countj'  commissioners  or  by  a  judge  of  this        '    '^ 


court;  but  in  regard  to  bj'-laws  in  relation  to  the  purposes,  enumerated  yv^ 

in  the  othe 

necessarv. 


in  the  other  eleven  paragraphs  of  the  section,  no  such  approval  is  made  (pvtUw^^ 


The  words  "prudential  affairs"  are  certainly  very  indefinite  and  *^W**^ 
unsatisfactory,  and  it  might  be  a  very  difficult  matter  in  many  cases  to 
determine  just  what  is  or  is  not  included  within  the  meaning  of  the 
expression.  This  term  was  taken  from  the  Massachusetts  statute 
where  the  same  difficulty  has  been  appreciated.  In  the  case  of 
Spaxdding  v.  Loivell,  23  Pick.  71,  Chief  Justice  Shaw  said:  "The 
ambiguity  lies  in  the  indefinite  term,' 'prudential  affairs,'  and  the  diffi- 
culty arises  in  each  case  in  settling  what  concerns  fall  within  it."  But 
however  indefinite  the  term  may  be,  that  it  was  not  intended  to  cover 
the  matters  enumerated  in  the  other  paragraphs  of  the  section,  is 
shown,  we  think,  both  by  the  language  of  the  original  enactments  and 
the  text  and  arrangement  of  paragraphs  in  the  section  of  the  revision, 
by  which  towns  are  empowered  to  make  by-laws  in  regard  to  police 
regulations ;  respecting  infectious  diseases ;  for  setting  off  portions  of 
streets  for  sidewalks ;  in  regard  to  the  erection  of  wooden  buildings ; 
and  as  to  various  other  matters. 


The  authority  of  a  municipality  to  adopt  such  an  ordinance  as  the 
one  here  under  consideration  is  given,  we  think,  by  paragraph  IX : 
"  For  the  regulation  of  all  vehicles  used  therein,  b}'  establishing  the 
rates  of  fare,  routes  and  places  of  standing,  and  in  any  other  respect." 

So  therefore  it  only  remains  to  inquire  whether  this  by-law  is  incon- 
sistent with  law  or  is  unreasonable.  "We  are  unaware  of  any  law  of 
the  State  which  it  contravenes.     All  public  ways  and  streets  are  for  the 


u 


270 


STATE    V.   BOARDMAN. 


i.^ 


accomodation  primarily  of  travelers  of  all  classes  and  kinds,  but  the 
traveler  is  not  in  all,  or  in  many  cases,  entitled  to'^liKe  wh6le  WtftttTOf' 
the  street  for  his  acconamodatiou.  He  is  entitled  to  a  reasonably  safe, 
convenient  and  practicable  opportunity  for  travel  and  passage.  A 
portion  of  a  way  as  located,  not  being  needed  for  travel,  may  be  left 
outside  of  the  wrought  road,  another  portion  may  be  set  off  for  side- 
walks and  the  use  of  the  remaining  width  of  the  way  so  regulated  that 
heavily  loaded  teams  and  other  vehicles  shall  use  exclusively  different 
portions  thereof,  and  still  no  one  would  be  deprived  of  his  rights,  but 
upon  the  other  hand  all  might  be  very  much  benefited  in  the  exercise 
of  them. 

Highways  and  streets  are  of  course  for  the  public  use,  they  are  not 


M3^- 


aJpne  for  the  people  of  the  municipality  in  which  they  are  located,  and 
such  ways  cannot  be  considered  in  any  sense  the  easement  or  property 
of  the  town;  but  the  municipality  in  which  a  public  way  is  located  has 
been  vested  by  the  legislature  with  the  supervision  and  control  of  such 
ways  for  public  use,  and  are  charged  with  the  responsibility  of  keeping 
them  in  repair  and  reasonably  suitable  and  suflBcient  for  use  by  the 
\public  for  purposes  of  travel.  The  power  to  properly  regulate  the  use 
•of  ways  so  as  to  preserve  for  all  the  rights  of  all  is  not  inconsistent 
with  any  provision  of  law. 

Such  a  by-law  does  not  deprive  a  person  of  any  right,  it  simply  regu- 
lates the  exercise  of  it,  and  it  can  be  readily  seen  that  such  a  regulation 
may  afford  to  all  travellers  much  better  opportunities  for  travel  than 
they  could  otherwise  enjoy. 

In  Commomvealth  v.  Stodder,  2  Cush.  562,  the  court  said:  "We 
cannot  doubt  that  a  by-law,  reasonably  regulating  the  use  of  the  public 
streets  of  the  city  as  to  carriages  of  an  unusually  large  size,  or  as  to 
those  which  from  the  mode  of  using  them  would  greatly  incommode,  if 
not  endanger,  those  having  occasion  to  use  such  public  streets,  would 
be  valid  and  legal;  and  that  such  regulations  might  prescribe  certain 
streets  as  the  route  of  travel  for  such  vehicles,  and  provide  for  their 
exclusion  from  certain  other  streets." 

Was  this  by-law  reasonable  ?  By  its  terms  all  persons  passing  over 
the  street  named,  with  any  vehicle  on  which  there  were  loads  exceeding 
2,500  pounds  in  weight,  are  restricted  to  the  use  of  fifteen  feet  of  the 
width  of  the  street  next  to  the  electric  railroad  track.  That  this  would 
\'c>Arbe  a  reasonable,  and  in  many  cases  a  most  salutary  regulation,  we 
have  no  doubt;  but  such_a  by-law  might  be  unreasonable,  if  that  por- 
tion of  the  way  to  which  such  vehicles  were  restricted  was  allowed  to 
•  become  in  such  a  condition  as  to  be  impassable,  that  is,  if  the  only 
portion  of  the  way  which  the  by-law  allowed  to  be  used  for  heavily 
loaded  vehicles  could  not  be  at  all  used,  because  it  had  been  allowed 
fo"become  in  such  a  condition  of  want  of  repair  as  to  be  impassable, 
V  then  that  portion  of  the  public,  who  had  occasion  to  use  the  way  for 
this  purpose,  would  be  absolutely  deprived  of  their  right  to  use  the 
w^ay  for  the  purpose  of  travel. 


>^ 


ELKHAKT   V.    MURRAY. 


271 


For  such  a  by-law  then  to  be  reasonable  and  valid,  with  reference  to 
such  a  way  and  in  such  a  locality  as  in  this  case,  thaj  portion  of  the 
street  whiclynay  be_u8ed  by  heavily  loaded  vehicles  must  be  reasonably 
suitalSIe^  for  the  purpose;  and  the  by-law  will  be  valid  or  invalid  de- 
^ending  upon  whether  that  portion  of  the  way,  to  which  such  vehicles 
are  restricted,  is  or  is  not  reasonably  suitable  for  the  purpose. 

Here  the  defendant  offered  evidence  tending  to  prove  that  the  fifteen 
feet  in  width  of  street  next  to  the  railroad  track  was  absolutely  impas- 
sable. The  evidence  was  excluded.  We  think  it  should  have  been 
admitted  because,  if  true,  the  by-law  became  unreasonable. 

It  is  true  that  the  question  of  the  reasonableness  of  a  by-law  is  for 
the  determination  of  the  court,  and  this  conclusion  does  not  take  away 
from  the  court  the  determination  of  the  question :  certain  facts  will 
have  to  be  passed  upon  by  the  jury;  but  the  standard  upon  the  question 
of  the  reasonableness  or  otherwise  of  the  by-law  is  established  by  the 

"  Monks,  C.  J 

"It 


Exceptions  sustained- 


^' 


ec- 


%:^' 


ELKHART  v.  MURRAY. 

1905.     165  Ind.  304.  V  ^-^  ' 

This  action  was  brought  by  the  city  of  Elkhart  for 


t<j 


\- 


<5l   •  ><    the  violation,  by  appellee,  of  an  ordinance  which  provides  that 
^y>^'^  "  ^  shall  be  unlawful  on  and  after  May  1,  1903,  to  run  any  street  ear  with- 
"^^    in  the  limits  of  said  city  without  having  securely  fastened  to  its  front 
end  a  Hunter  Automatic  Fender,  made  by  the  Hunter  Automatic  Fen. 
der  Company,  of  Covington, Kentucky,  or  some  other  fender  ecju^lly  as 
good,  to  be  approved  by  the  common  council  or  its  street  committee/^ 
TlTecourt  below  held  the  ordinance  invalid,  and  rendered  judgment  in 
favor  of  appellee. 

There  was  no  law  in  force  in  1903,  when  said  ordinance  was  passed,  (^  .^'^>* 
granting,  in  express  words,  to  cities  of  the  class  to  which  appellant  be-  e^ 

longed   the  power  to  require  street  cars  running  within  the  city  limits  , 

to  be  equipped  with  fenders.     But,  assuming  that  such  power  may  be  ^«a. 
implied  from  those  granted  {People  v.  Detroit  United  Railway  [1903],   <>«*i-^^* 
134  Mich.  682,  97  N.  W.  36,  63  L.  R.  A.  746,  749,  and  cases  cited), 
was  said  ordinance  a  reasonable  exercise  of  that  power?     Such  power, 
if  possessed  by  the  city,  must  be  exercised  by  ordinance.     The  ordiA  On.^«>''''^ 
nance  must  contain  permanent  legal  provisions  operating  generally  and    0"Y^ 
impartially  upon  all  within  the  territorial  jurisdiction  of  such  city,  and 
no  part  thereof  be  left  to  the  will  or  unregulated  discretion  of  the  com- 
mon council  or  any  officer.     If  an  ordinance  upon  its  face  restricts  the. 
right  of  dominion  which  the'^owner  might  otherwise  exercise  without 
question,  not  according  to  any  uniform  rule,  but  so  as  to  make  the  ab- 
solute  enjoyment  of  his  own  depend  upon  the  arbitrary  will  of  the  city 
authorities,  it  is  invalid,   because  it  fails  to  furnish  a  uniform  rule  of 


s^^ 


W-- 


v'-^^.-a 


r^ 


UxJ(JU 


i.. 


.'~^J 


272 


ELKHART   V.    MUREAY. 


-iA'^ 


action  and  leaves  the  right  of  property  subject  to  the  will  of  such 
authorities,  who  may  exercise  it  so  as  to  give  exclusive  profits  or  privi- 
leges to  particular  persons.  City  of  Richmond  v.  Dudley  (1891),  129 
Ind.  112,  13  L.  R.  A.  587,  28  Am.  St.  180,  and  cases  cited;  Bills  v. 
City  of  Goshen  (1889),  117  Ind.  221,  3  L.  R.  A.  261 ;  Bessonies  v. 
City  of  Indianapolis  (1880),  71  Ind.  189;  City  of  Fly  month  v.  ScMd- 
theis  {189S),  135  Ind.  339 ;  Mayor,  etc.,  v.  i^aJec/te  (1878),  49  Md. 
217,  33  Am.  Rep.  239;  State  ex  rel.  v.  Bering  (1893),  84  Wis.  585, 
54  X.  W.  1104,  19  L.  R.  A.  858,  36  Am.  St.  948;  Cicero  Lumber  Co. 
V.  Tov:n  of  Cicero  (1898),  176  111.  9,  27,  51  N.  E.  758,  42  L.  R.  A.  696, 
08  Am.  St.  155,  and  authorities  cited;  Noel  v.  People  (1900),  187  111. 
587,  591,  592,  58  N.  E.  616,  52  L.  R.  A.  287,  79  Am.  St.  238;  City 
of  Chicago  v.  Trotter  (1891),  136  111.  430,  438,  26  N.  E.  359;  Stcde 
V.  Tenant  (1892),  110  N.  C.  609,  612,  613,  14  S.  E.  387,  28  Am.  St. 
715,  15  L.  R.  A.  423,  and  cases  cited;  Toum  of  Stcde  Center  v.  Bar- 
e?istein  (1885),  66  Iowa,  249,  23  N.  W.  652  ;  City  of  Jacksonville  v. 
Ledwith  (1890),  26  Fla.  163,  7  South.  885,  9  L.  R.  A.  69,  23  Am.  St. 
558,  and  authorities  cited  on  pages  575,  576 ;  City  of  Neivton  v.  Belger 
(1887),  143  Mass.  598,  10  N.  E.  464  ;  Sfate  v.  Mcdiner  (1891),  43  La.' 
Ann.  496^98,  9  South.  480;  May  v.  People  (1891),  1  Colo.  App.  157, 
27  Pac.  1010. 

In  Bessonies  v.  City  of  Indianapolis,  supra,  at  page  197,  this  court 
said:  "Without  any  provision  as  to  the  location  or  management  of 
hospitals,  the  ordinance  attempts  to  make  it  unlawful  for  any  one  to  es- 
tal)lisli  or  conduct  one  without  a  license  or  permit  from  the  common 
couicil  and  board  of  aldermen;  and  the  granting  or  refusal  of  the 
license  or  permit  is  not  governed  b}"  any  prescribed  rules,  but  rests, 
in  such  case,  in  the  uncontrolled  discretion  of  the  comm^on  council 
and  board  of  aldermen.  It  is  apparent,  that,  under  the  ordinance, 
if  valid,  the  common  council  and  board  of  aldermen  have  the  power  to 
\  grant  or  refuse  the  license  in  any  given  case,  at  their  mere  pleasure; 
aud  that  no  one  can  conduct  or  maintain  a  hospital  within  the  city, 
however  harmless  or  beneficial  it  might  be,  except  by  the  consent  of 
the  common  council  and  board  of  aldermen.  It  is  not  necessary 
to  suppose  that  the  common  council  and  board  of  aldermen  would 


[^    ^     , 

*'^\^,P^oJ  /  abuse  the  power  thus  assumed  by  them,  to  grant  or  refuse  the  license, 
*1\'  f  .f.  I  as  they  might  think  proper,  or  that  they  would  exercise  it  otherwise 
"I  than  as  they  might  think  for  the  public  good.  It  is  sufficient  to  say, 
that,  if  the  ordinance  is  valid,  the  common  council  and  board  of  alder- 
men have  it  in  their  power  to  grant  one  person  a  license,  and  refuse 
another,  under  the  same  circumstances.  No  law  could  be  valid,  which, 
by  its  terms,  would  authorize  the  passage  of  such  an  ordinance.  The 
twenty-third  section  of  the  bill  of  rights  provides,  that  '  The  General 
Assembly  shall  not  grant  to  any  citizen,  or  class  of  citizens,  privileges 
or  immunities  which,  upon  the  same  terms,  shall  not  equally  belong  to 
all  citizens.'  What  the  legislature  cannot  do  directl}'  in  this  respect, 
it  cannot  authorize  a  municipal  corporation  to  do." 

3 


\.^A 


t  y  «'    ^ 


COMMONWEALTH   V.   MALETSKY. 


273 


In  City  of  Richmond  v.  Dudley^  snpra,  at  page  116,  this  court  said  : 
*'  It  seems  from  the  foregoing  authorities  to  be  well  established  that 
municipal  ordinances  placing  restrictions  upon  lawful  conduct,  or  the 
lawful  use  of  property,  must,  in  order  to  be  valid,  specify  the  rules  and 
conditions  to  be  observed  in  such  conduct  or  business  ;  and  must  admit 
of  the  exercise  of  the  privilege  by  all  citizens  alike,  who  will  comply 
with  such  rules  and  conditions;  and  must  not  admitof  the  exeicise,  or 
of  an  opportunity  for  the  exercise,  of  any  arbitrary  discrimination  by 
the  municipal  authorities,  between  citizens  who  will  so  comply." 

It  will  be  observed  that  said  ordinance  requires  the  use  of  the  par- 
ticular fender  described  herein,  or  some  other  fender  equally  as  good,  to 
be  approved  by  the  common  council  or  street  committee.     The  ordi- 


nance^ valid,  vests  in.theXQiDmou  council  and  street  committee  an.ai;- 
bitrary  discretion  which  they  may  exercise  or  not  at  their  pleasure. 


They  have  the  power  to  approve  a  fender  for  use  by  one  street  railroad 
company,  and  refuse  approval  of  the  same  fender  for  use  by  another 
company  under  the  same  circumstances  and  conditions.  They  also  have 
the  power  to  approve  one  or  more  fenders,  and  refuse  approval  of  other 
fenders  equally  as  good  or  better,  whether  made  by  the  street  railroad 
company  or  some  one  else,  thus  arbitrarily  discriminating  in  favor  of 
some  manufacturers  and  against  others.  It  is  the  fact  that  said  of- 
ficers have  the  power  to  do  this,  and  not  that  they  will  do  so,  that 
render^  said  ord^nancejpyalid. 

j)  Judgment  affirmed. 


^p^. 


MMONWEALTH  v.  MALETSKY. 


v>-o^ 


^ 


i^' 


1909.     203  Mass.  241. 

jP^  dy*^  Complaint  filed  in  the  police  court  of  Chelsea  on  August  18,  1908, 
.  ^'^        charging  the  defendant  with  using  a  certain  building  in  Chelsea  for  the 
V'^        purpose  of  picking,   sorting  and  storing  rags  therein,  without  a  permit 
^  in  writing  from  the  chief  of  the  fire  department  of  Chelsea.^ 

*i,'  •  •  •  •  •  •  •  •  • 

Sheldox,  J.      The  first  sentence  of  c.  30  §  64,  of  the  City  Or- 
dinances of  Chelsea  reads  as  follows:    "No  person  shall  use,  occupy 
or  maintain  any  building  for  the  purpose  of  picking,  sorting,  or  stor- 
CA-Vak®  o^  x^Z^  therein,  without  a  permit  in  writing  from  the  chief  of  the 
^°;    ,-  fire    department."      The    fundamental    question    now    presented     is 
j^y^       whether  this  prohibition  can  be   enforced  as  a  valid  exercise  of  the 
•V?        police  power.      And  the  question  really  is  whether  the  prohibition   can 
^P-»^-^'     be  upheld  under  the  provisions  of  R.  L.  c.  104,  §  1,  that  "Every  city, 
^  <;  except  Boston,  and  every  town  which  accepts  the  provisions  of  this 
section  or  has  accepted  the  corresponding  provisions  of  earlier  laws 

v»  ;^C'  "  The  statement  of  facts  is  omitted. — Ed.  -  \c  i  -' 


—  Vw.*:*^ 


>-^    Y>-'^--<U_^,^9^  J  ^    \>Oov>-«3i-Si- 


Jtd^v 


27,4  COMMONWEALTH   V.    MALETSKY. 

>  4,<-,S^A'"may,  for  the  prevention  of  fire  and  the  preservation  of  life,  by  ordi- 
nances  or  by-laws  not  inconsistent  with  law  and  applicable  throughout 
^^*^^l  the  whole  or  any  defined  part  of  its  territory,  regulate  the  inspection, 
j^NJ^  materials,  construction,  alteration  and  use _  of  buildings  and  other 
structures  within  its  limits,  except  such  as  are  owned  or  occupied  by 
the  United  States  or  by  the  Commonwealth  and  except  bridges,  quays 
and  wharves,  and  may  prescribe  penalties  not  exceeding  one  hundred 
dollars  for  each  violation  of  such  ordinances  or  by-laws."  This  or- 
dinance cannot  be  sustained  under  the  authority  given  by  R.  L.  c.  25, 
§  23,  or  by  St.  1902,  c.  187,  for  the  reason  that  the  penalty  authorized 
j  by  these  statutes  is  limited  to  820,  while  the  penalty  for  the  violation 
of  any  of  the  provisions  of  the  chapter  before  us  is  a  fine  of  not  less 
than  $20  nor  more  than  $100.  And  this  ordinance  appears  to  have 
been  intended  wholly  to  guard  against  the  danger  of  fire.  Accordingly 
it  cannot  be  sustained  on  the  ground  of  Commonwealth  v.  Huhley^ 
172  Mass.  58. 

We  assume  that  it  was  within  the  power  of  the  municipal  authorities 
uiu.^^r^^'to  decide  that  rags  were  more  iiiflainmable  than  many  other  articles, 
j-^TUifk  ahcT^that  the  "business  of  picking,  sorting,  or  storing  them  involved 
vull^J^''^  peculiar  danger  of  fire,  and  therefore  that  onlinances  properly  miiiht 
be  passed  to  regulate  the  materials  and  conytructioa  of  buiklingo  u.^ed 
for  that  business  and  to  provide  for  the  inspection  and  fix  the  mode  of 
use  of  such  Ijuildings.  This  is  within  the  principle  of  many  decisions. 
Salem  v.  Maynes^  123  Mass.  372;  Train  v.  Boston  Disinfecting  Co., 
144  Mass.  523,  stated  in  Cojyimonwealth  v.  Sisson^  189  Mass.  247,  253; 
Commonioealth  v.  Parks,  155  Mass.  531 ;  Newton  v.  Joyce,  166  Mass. 
83;  Clark  v.  South  Bend,  85  Ind.  276;  Greeny.  Lake,  60  Miss. 
451;  In  re  Hang  Kin,  69  Cal.  149;  McCloskey  v.  Kreling,  76  CaL 
611;  Barhier  v.  Connolly,  113  U.  S.  27;  Soon  Hin<j  v.  Crovjley,  113 
U.  S.  703.  Similar  doctrines  have  been  affirmed  in  other  cases.  Com- 
monwealth V.  Plaisted,  148  Mass.  375;  Com?nonivealth  v.  Mulhally 
162  Mass.  496  ;  Commonivealth  v.  Packard,  185  Mass.  64,  65  ;  Austin 
v.  Tennessee,  179  U.  S.  343.  The  mere  fact  that  one  effect  of  such  re- 
gulations will  be  to  exclude  some  individuals  from  certain  occupations,  or 
to  prevent  them  from  using  their  property  in  some  advantageous  manner 
which  otherwise  would  not  be  unlawful,  will  not  make  the  regula- 
tions invalid.  Commonicealth  v.  Sisson,  189  Mass.  247;  Comjjwn- 
wealth  V.  Hnhley,  172  Mass.  58;  Slaughter  House  Cases,  16  Wall. 
36;  Mugler  v.  Kansas,   123  U.  S.  623;    Poivell  v.  Pennsylvania,  127 

^'V'^^^&^t^-  ^-  ^'^-  ^"*  §§  ^  ^"^  ^^  ^^  *^®  ordinance  before  us,  the  validity 
'^'^'^  J  of  which  sections  is  not  brought  in  question,  have  provided  for  the 
^'''*^''''^  materials  and  construction  of  buildings  to  be  used  for  this  business. 
'^-^ '  I  Can  the  city  of  Chelsea  also  forbid  any  one  from  using  for  this  purpose 

a  building  consti'ucted  in  exact  conformity  with  its  requirements  un- 
-  jr  ^  less  he   shall  also  have  procured  a  written  permit  to  do  so  from  the 
*^^  1  chief  of  its  fire  department?     The  effect  of  this  additional  requirement 

"^  ,        1  is  to  leave  it  wholly  to  the  will  of  that  officer  whether  or  not  anv  per- 

\^^     |-       '  I  '  '      ■:  1/    4- 


COMMONWEALTH   V.   MALETSKY. 


275 


son  shall  be  permitted  to  enojage  in  this  business.     No  rules  are  pro-  l\jii  ^fi^^ 
videct  tor  tbe  exercise  of  bis  judgment;    there  is  no  appeal   from  his  \  (»j|    c 
determination  to  the  city  councillor  the  board  of  control   (St.   1908,   \  t<y*^^i>v*- 
c.  559) ,  the  department  of  the  city  government  which  was  entrusted  by         "^'^^±2: 
the  Legislature  with  the  exercise  of  this  power.     Doubtless  it  is  to  be 
expected  that  a  subordinate  officer  entrusted  with  such  unlimited  pow- 
er will  use  it  wisely  and  with  a  view  only  to  the  public  good ;    but,  as 
in  WlnthropY.  New  England  Chocolate  Co.,  180  Mass.  464,  46G,  there 
is  nothing  in  the  ordinance  to  guide  him  in  passing  upon  the  applica- 
tions that  may  be  made  to  him.     His  action  in  revoking  a  permit  once 
issued  may  be  appealed  from ;  l)ut  his  refusal  to  issue  any  permit  is 
final.     It  is  left  entirely  to  his  untrammeled  discretion  whether  the 
business  of  keeping  or  sorting  rags  shall  be  carried  on  at  all  in  Chel- 
sea, or  whether,  if  carried  on,  it  shall  be  confined  to  persons  of  one 
nationality  or  of  one  way  of  thinking  in  religion  or  politics.     As  in 
Newton  v.  Belger,  143  Mass.   598,  599,  there  are  no  regulations  to 
guide  the  applicant  for  a  permit  as  to  what  he  must  do  or  what  quali- 
fications he  must  show  in  order  to  entitle  himself  to  a  permit.     Every 
person,  however  careful  and  however  well  qualified,  is  forbidden  to  use 
any  building,  although  absolutely  fireproof,  for  the  storage  of  any  rags, 
although  quite  incombustible,  without  a  permit  which  no  qualifications 
I    might  enable  him  to  obtain.     Neither  expressly  nor  by  necessary  im- 11  ^^sJij3>»-^ 
I    plicatiojiis  the  chief  of  the  fire  department  required  to  base  his  action  11  fujtfR^MtJ^ 
I   in  granting  or  refusing  a  permit  upon  the  danger  of  fire  involved^   It  If   Vjov.* 
r  has  been  held  that  when  such  unlimited  power  has  been  granted  by      ^   '^  " 
the  Legislature  to  certain  designated  municipal  boards  or  oflicers,  an 
ordinance  by  which  they  undertake  to  delegate  this  power  absolutely 
to  a  subordinate  officer  will  be  merely  void.     Coffin  v.  Nantucket,  5 
Cush.  2G9  ;  Day  v.  Green,  4  Cush.  433 ;  Loivell  v.   Simpson,  10  Al- 
len, 88;  Commonwealth  v.  Staples,  191  Mass.  384;   Cicero  Lumber 
Co.  V.  Cicero,  176  111.  9  ;   Chicago  v.  Trotter,  136  111.  430;  State  Cen- 


1    t^-<S^>-'^ 


r-,  v-vy^ 


,\v" 


tre  \,_Bajrenstein^6&  Iowa,  2^4^. 


v-« 


r^ 


wO-*-0" 


This  is  not  a  case  where  the  city  government  has  'general  control  of 
the  subject  matter  of  the  ordinance  and  may  impose  such  conditions  ^.^ 
as  it  pleases,  as  in  Conimomvealth  v.  Ellis,  158  Mass.  555,   Common- 1^ 
icealth  V.  Mulhcdl,  162  Mass.  496,  and  similar  cases.     The  power  of 
the  city  of  Chelsea  to  deal  with  this  subject  is  only  what  is  given  by 
R.  L.  c.  104,  §  1 ;  and  the  city  authorities  can  in  no  respect  transcend 
the  authority  thus  given.      Commomvealth  v.   Turner,   1  Cush.  493; 
State  V.   Schuchardt,  42  La.  Ann.  49.     "We  need  not  doubt  the  power 
of  the  Legislature  to  establish  such  regulations  as  this,   or  to  delegate! 
that  power  to  city  governments  or  other  boards  if  it  desires  to  do  so,      (UXjl^^^,^ 


Ki-.-- 


and  to  make  licenses  or  permits  from  an  administrative  officer  necessary 
to  the  exercise  of  trades  or  kinds  of  business  that  might  involve  a  pub- 
lic danger.  Many  cases  to  this  effect  have  been  already  referred  to. 
See  also  Commonioealth  v.  Page,  155  Mass.  227,  230;  Common- 
wealth v.  Abrahams^  156  Mass.  57,  60;  Commonioealth  v.  Eoswell,  173 


"^     A^Cf^M 


276 


COMMONWEALTH   V.  MALETSKY. 


Mass,  119;  Attorney  General  \.  Williams,  174  Mass.  476,  478;  Brod- 
hine  \.  Revere,  182  Mass.  598;  Sprague  \.  Miiion,  195  Mass.  581; 
Commonwealth  v.  Kingshxtry,  199  Mass.  542.  But  as  has  been  already 
pointed  out,  the  effect  of  the  enforcement  of  this  ordinance  by  the  chief 
of  the  fire  department  may  be  wholly  to  prohibit  the  carrying  on  of  the 
TVV  specified  business  in  Chelsea.     It  is  practically  for  him  and  not  for  the 

^ilfliod  (board  of  control  to  make  such  rules  and  regulations  to  be  observed  by 
j  any  to  whom  he  may  choose  to  give  permits  as  he  may  think  proper; 
I  and  so  far  as  he  may  make  compliance  with  his  regulations  a  condition 
precedent  to  the  issue  of  a  permit,  his  power  is  absolute.  These  are 
legislative  functions.  And  as  was  said  in  Cooley  on  Constitutional 
Limitations  (7th  ed.),  293,  a  "  very  important  limitation  which  rests 
upon  municipal  powers  is  that  they  shall  be  executed  by  the  municipal- 
ity itself,  or  by  such  agencies  or  officers  as  the  statute  has  pointed  out. 
So  far  as  the  functions  are  legislative,  they  rest  in  the  discretion  and 
judgment  of  the  municipal  body  entrusted  with  them,  and  that  body 
cannot  refer  the  exercise  of  the  power  to  the  discretion  and  judgment 
of  its  subordinates  or  of  any  other  authority.  "  State  v.  Paterson,  5 
Vroom,  163,  168;  Lyon  v.  Jerome,  26  Wend.  485;  Brooklyn  v.  No- 
dine,  26  Hun,  512;  East  St.  Louis  v.  Welirung,  50  111.  28;  Kin- 
mundy  v.  Mahan,  72  111.  462  ;  Buggies  v.  Collier,  43  Mo.  353. 

The  general  principle  also  has  been  affirmed  that,  at  any  rate  in  the 
absence  of  a  clear  expression  of  the  legislative  will,  an  ordinance 
which  attempts  to  vest  in  a  city  counoil  or  a  board  of  control  or  some 
administrative  officer  of  the  municipality  the  power,  not  subject  to  re- 
view by  the  courts  or  by  other  higher  authority,  to  permit  or  refuse  to 
permit  the  carrying  on  of  a  business  lawful  in  itself  and  not  prohibited 
by  legislation,  is  not  to  be  sustained.  It  was  said  by  Brown,  J.,  in 
Austin  V.  Tennessee,  179  U.  S.  343  :  "Although  it  was  held  in  Barbier 
V.  Connolly,  113  U.  S.  27,  and  Soon  Hing  v.  Crowley,  113  U.  S.  703, 
that  a  municipal  ordinance  prohibiting  laundry  work  w^ithin  certain 
territorial  limits  and  within  certain  hours  was  purely  a  police  regula- 
tion, such  an  ordinance  was  void,  if  it  conferred  upon  the  municipal 
authorities  ai'bitrary  power  at  their  own  will  and  without  regard  to  dis- 
cretion in  the  legal  sense  of  the  term,  to  give  or  withhold  consent  as  to 
persons  or  places  without  regard  to  the  competency  of  the  persons  ap- 
pying,  or  the  propriety  of  the  place  selected  for  carrying  on  business. "~' 
And  see  to  the  same  effect  Gundling  v.  Chicago,  177  U.  S.  183  ; 
Plessy  V.  Ferguson,  163  U.  S.  537,  550;  Yick  Wo  v.  Hopkins,  118 
U.  S.  356  ;  Mayor  &  City  Council  of  Baltimore  v.  Radecke,  49  Md.  217  ; 
Richmond  v.  Dudley,  129  Ind.  112;  Money  weight  Scale  Co.  v.  Mc- 
Bride,  199  Mass.  503,  514.  The  pursuit  of  a  lawful  business,  not  in 
itself  harmful,  though  it  may  be  regulated,  is  not,  without  legislative 
sanction,  wholly  to  be  stopped  by  municipal  ordinances  for  the  preven- 
tion of  fire  or  for  safeguard  against  some  other  apprehended  danger. 
Belmont  v.   Neio  England  Brick  Co.,    190  Mass.  442;   Covimonwea/th 


Ul- 


^' 


M 


V.  Rawson,  183  Mass.  491,  494;  Belcher  v.  Farrar,  8  Allen,  325,  328; 

U^^^s-Ji^,^     <;><«/*-s>s-u«^-»_»>..     \J^/>jJl,/^.^Xk^     ^JL^^Lo'-^'f^    ^txl^    fi^^i-t-T-^t  |-c< 


RAILROAD   COMPANY   V.   RICHMOND.  277 

Austin  V.  Murray,  16  Pick.  121,  12G;  Commissioners  of  Northern 
Liberties  v.  Northern  Liberties  Gas  Co.,  12  Peuu.  8t.  318;  Montgom- 
ery V.  West,  9  L.  R.  A.  (N.  S.)  659,  and  note.  And  see  Wineburgh 
Advertising  Go.  v.  Murphy,  195  N.  Y.  126. 

Accordingly,  in  our  opinion,  that  partjof^.  ^0,  §  64,  of  the  City  Or- 
dinances of  Clielsea  whicli  forbids  the  use  of  any  building  for  the  pick- 
lug^  sorting  or  storage  of  rags  without  a  permit  in  writing  from  tlie 
chief  of  the  fire  department  is  invalid  and  void ;  and  the  first  and 
second  instructions  requested  by  the  defendant  should  have  been  given. 
This  conclusion  makes  it  unnecessary  to  consider  whether  the  evidence 
offered  by  the  defendant  should  have  been  admitted,  either  to  the 
court  or  to  the  jury. 

In  accordance  with  the  terms  of  the  report  a  verdict  of  not  guilty  must 
be  entered.  _ 

So  ordered. 


.^  -^ 


<y^  ^^  Section  III.  —  Folice  Power. 


*^ >  V   ^^^^^  RAILROAD  COMPANY  v.  RICHMOND. 

■»    .sr^  1877.    96  U.  S.  521. 

v.>^'  The  Richmond,   Fredericksburg  and  Potomac  Railroad  Company 

maintained  a  line  of  railroad  on  Broad  Street  in  Richmond.  The  city 
council  thereafter  passed  an  ordinance  to  the  effect  that  no  car,  engine, 
carriage,  or  other  vehicle  of  any  kind  belonging  to  or  used  by  said  road 
should  be  drawn  or  propelled  by  steam  upon  that  part  of  their  track  on 
Broad  Street  east  of  Belvidere  Street.  This  action  was  brought  to  re- 
cover  a  penalty  for  violation  of  the  ordinance.^ 

Waite,  C.  J.  ...  It  remains  only  to  consider  whether  the  ordinance 
complained  of  is  a  legitimate  exercise  of  the  power  of  a  city  govern- 
ment. It  certainly  comes  within  the  express  authority  conferred  by 
the  amendment  to  the  city  charter  adopted  in  1870  ;  and  that,  in  our 
opinion,  is  no  more  than  existed  by  implication  before.  The  power  to 
govern  implies  the  power  to  ordain  and  establish  suitable  police  regu- 
lations ;  and  that,  it  has  often  been  decided,  authorizes  municipal  cor- 
porations to  prohibit  the  use  of  locomotives  in  the  public  streets,  wlien 
such  action  does  not  interfere  with  vested  rights.  Donnaher  v.  The 
State,  8  Smed.  &  M.  Miss.  649  ;  Whitson  v.  The  City  of  Franklin,  34 
lud.  392. 

Such  prohibitions  clearly  rest  upon  the  maxim  sic  utere  tuo  ut  alienum  "p^^^r^    i 
non  Icedas,  which  lies  at  the  foundation  of  the  police  power ;  and  it  was  1^     ,      ^ 
not  seriously  contended  upon  the  argument  that  they  did  not  come 
within  the  legitimate  scope  of  municipal  government,  in  the  absence  of 

1  This  short  statement  is  substituted  for  that  of  the  Reporter.     Arguments  and 
part  of  the  opinion  are  omitted. — Ed.  , 


278 


DUFFIELD    V.   WILLIAMSPORT    SCHOOL   DISTRICT. 


1^ 


,«r>^ 


legislative  restriction  upon  the  powers  of  the  municipality  to  that  effect. 
It  is  not  for  us  to  determine  in  this  case  whether  the  power  has  been 
judiciously  exercised.  Our  duty  is  at  an  end  if  we  find  that  it  exists. 
The  judgment  of  the  court  below  is  final  as  to  the  ^figjgifiJiL^bleness  of 
the  action  of  the  council.  ... 

Affirmed. 


wV 


iJr-' 


>^ 


DUFFIELD  V.  WILLIAMSPORT  SCHOOL  DISTRICT.  ^jjj.^.,tfi;vv< 

1894.     162  Pa.  476.  1,^^  "^   *^ 

Williams,  J.^  The  plaintiff  seeks  to  compel  by  a  writ  of  mandamus  IV^j-^a 
the  admission  of  his  minor  son  to  the  common  school  of  the  city  of  -— t  (j, 
Williamsport.  The  board  of  school  directors  admits  that  the  child  is 
of  proper  age,  is  in  good  health,  and  possesses  the  qualifications  that 
are  enumerated  in  the  general  school  laws  as  those  that  entitle  him  to 
admission.  They  allege  however  that  he  is  excluded  because  of  non- 
compliance with  a  regulation  adopted  in  the  exercise  of  a  proper  mea.- 
sure  of  care  for  the'pulSTic  health.  The  facts  appearing  in  the  answer 
aTe'  substantially  as  follows  : 

First.  That  the  city  of  Williamsport  provided  by  an  ordinance 
adopted  in  1872  and  still  in  full  force  that  no  pupil  "  shall  be  permitted  to 
attend  any  jjublic  or  jirivaj:;^  school  in  said  city  without  a  certificate  of 
a  practicing  physician  that  such  pupil  has  been  subjected  to  the  pro- 
cess of  vaccination."  Second.  That  smallpox  now  exists  in  Williams- 
port and  "  is  and  has  been  epidemic  in  many  near  by  cities  and  towns," 
Third.  That  in  view  of  this  situation  the  attention  of  the  school  board 
was  drawn  to  the  subject  by  a  communication  from  the  board  of  health 
requesting  them  to  take  action  "  to  the  effect  tliat  no  pupil  shall  attend 
the  schools  of  this  city  except  they  be  vaccinated  or  furnish  a  certifi- 
cate from  a  physician  that  such  vaccination  has  been  performed." 
Fourtli.  That  upon  considering  this  communication  "and  from  the 
general  alarm  prevailing  in  the  city  over  the  report  that  a  case  of 
smallpox  was  in  the  city "  they  adopted  a  resolution  in  conformity 
with  the  recommendation  of  the  board  of  health.  Fifth.  That  this 
resolution  is  not  enforced  against  those  not  at  present  in  a  condition 
to  undergo  vaccination ;  and  as  to  those  unable  to  bear  the  expense, 
the  board  provide  vaccination  without  charge. 

Tlie  plaintiff  demurred  to  this  answer,  and  the  questions  thus  raised 
are  over  th e  po werjofjLh£_sjchaQL.bQard ..to  adopt  reasonabfej^eaith  reg- 
-^  ulations  for  the  benefit  of  their  pupils  and  the  general  public,  and 
^  over  the  reasonableness  of  the  particular  regulation  complained  of  in 
this  case.  It  should  be  borne  in  mind  that  there  is  no  effort  to  compel 
vaccination.  The  school  board  do  not  claim  that  they  can  compel  the 
plaintiff  to  vaccinate  his  son.     They  claim  only  the  right  to  exclude 

1  Arguments  omitted.  —  Ed.  , 


DUFFIELD   V.    WILLIAMSPORT    SCHOOL   DISTRICT. 


279 


from  the  schools  those  who  do  not  comply  with  such  regulations  of  the 
city  and  the  board  of  directors  as  have  been  thought  necessary  to  pre- 
serve the  public  health.  It  would  not  be  doubted  that  the  director 
would  have  the  right  to  close  the  schools  temporarily  during  the  preva- 
lence of  any  serious  disease  of  an  infectious  or  contagious  character 
This  would  be  a  refusal  of  admission  to  all  the  children  of  the  district. 
They  might  limit  the  exclusion  to  children  from  infected  neighborhoods, 
or  families  in  which  one  or  more  of  the  members  was  suffering  from 
the  disease.  For  the  same  reason  they  niay  excUide  sucjh^chi^tlren^s 
decline  to  comply  with  requirements  looking  to  prevention  of  the 
spread  of  contagion,  provided  these  requirements  are  not  posTtiVely 
unreasonable  in  their  character. 

is  the  regulation  now  under  consideration  a  reasonable  one?  That 
is  to  be  judged  of  in  the  first  instance  by  the  city  authorities  and  the 
school  board.  It^is  only  in  the  case  of  an  abuse  of  discretionary  pow- 
ers that  the  court  will  undertake  to  supervise  official  discretion.  Vac- 
cination may  be,  or  may  not  be,  a  preventive  of  smallpox.  That  is  a 
question  about  which  medical  men  differ  and  which  the  law  affords  no 
means  of  determining  in  a  summary  manner.  A  decided  majority  of 
the  medical  profession  believe  in  its  efficacy.  The  municipal  regula- 
tions of  many,  and  1  have  no  doubt  of  most,  of  the  cities  of  this  state 
and  country,  provide  for  it.  Iu_the  present  state  of  medical  knowledge 
and  public  opinion  upon  this  subject  it  w'ould  be  impossible  for  a  court 
to  deny  that  there  is  reason  for  believing  in  the  importance  of  vaccina- 
tion as  a  means  of  protection  from  the  scourge  of  smallpox.  The 
question  is  not  one  of  science  in  a  case  like  the  present.  We  are  not 
required  to  determine  judicially  whether  the  public  belief  in  the  effi- 
cacy of  vaccination  is  absolutely  right  or  not.  We  are  to  consider  what 
is  reasonable  in  view  of  the  present  state  of  medical  knowledge  and 
the  concurring  opinions  of  the  various  boards  and  officers  charged  with 
the  care  of  the  public  health.  The  answers  of  the  city  and  the  school 
board  show  the  belief  of  the  proper  authorities  to  be  that  a  proper  re- 
gard for  the  public  health  and  for  the  children  in  the  public  schools, 
requires  the  adoption  of  the  regulation  complained  of.  They  are  doing, 
in  the  utmost  good  faith,  what  they  believe  it  is  their  dut}'  to  do ;  and 
though  the  plaintiff  might  be  able  to  demonstrate  by  the  highest  scien- 
tific tests  that  they  are  mistaken  in  this  respect,  that  would  not  be 
enough.  It  is  not  an  error  in  judgment,  or  a  mistake  upon  some  ab- 
struse question  of  medical  science,  but  an  abuse  of  discretionary 
power,  that  justifies  the  courts  in  interfering  with  the  conduct  of  the 
school  board  or  setting  aside  its  action.  It  is  conceded  that  the  board 
might  rightfully  exclude  the  plaintiff's  son  if  he  was  actually  sick  with, 
or  was  just  recovering  from,  the  smallpox.  Though  he  might  not  be 
affected  by  it,  j^t  if  another  member  of  the  same  family  was,  the  right 
to  exclude  him,  notwithstanding  he  might  be  in  perfect  health,  would 
lie  conceded.  How  far  shall  this  right  to  exclude  one  for  the  good  of 
many  be  carried  ?     That  is  a  question  addressed  to  the  official  discre- 


^ 


280  STATE    V.   JOHNSON. 

tion  of  the  proper  officers ;   and  when  that  discretion  is  honestly  and 
impai'tially  exercised  the  courts  will  not  interfere. 

The  learned  judge  of  the  court  below  reached  a  correct  conclusion 
in  this  case,  and  his  decree  is  now  affirmed  at  the  cost  of  the  appellant. 

\\  STATE  V.   JOHNSON.   yOJ^^*-^  ^Z-^f^^-^^^^^V^- 

1894.     114iV.C.846.  U^^M^^^ 

Criminal  action,  tried  before  Boykin,  J.,  at  spring  term,  1893,  of  ^2<r^ 
Forsyth  Superior  Court  on  appeal  from  the  judgment  of  the  Mayor  of 
the  city  of  Winston. 

A  jury  trial  was  waived,  and  the  facts  agreed  are  as  follows: 
Defendant  was  occupying  and  controlling  a  two-story  wooden  frame 
house  with  brick  basement,  situated  in  the  city  of  Winston,  within 
1,000  feet  of  the  Court  Square,  and  about  the  9th  of  December,  1892, 
the  house  was  partially  destroyed  by  fire ;  that  on  the  6th  of  January, 
1893,  the  defendant  made  a  contract  with  certain  builders  to  have 
the  house  repaired  at  a  cost  of  S-190 ;  the  original  cost  of  the  building, 
including  brick  basement,  was  about  62,000.  Shortly  after  work 
began  under  said  contract  the  defendant  was  an-ested,  tried  and  con- 
victed before  the  Mayor,  and  on  appeal  to  the  "Superior  Court  the  case 
was  dismissed  on  motion  to  quash  the  warrant.  About  the  17th  of 
March,  1893,  the  defendant,  without  the  consent  of  the  Board  of  Al- 
dermen, placed  said  contractors  at  work  again  on  the  building,  and  he 
was  again  arrested  and  tried  before  the  Mayor  and  fined,  and  he  ap- 
pealed from  the  judgment  to  the  Superior  Court.  The  following  ordi- 
nances relating  to  this  matter  were  adopted  by  said  Board:  '^That 
for  the  protection  of  the  city  against  fire  the  following  ordinances  be 
enacted  under  chapter  5,  as  sections  36  and  37  of  said  chapter  5  of  the 
ordinances  of  the  city :  Section  36.  That  the  fire  limit  shall  be  tlie  ter- 
ritory from  the  center  of  Court  Square,  extending  one  thousand  feet  in 
each  direction ;  that  it  shall  be  unlawful  without  the  consent_of _^e 
Board  for  any  person  or  corporation  to  erecT,  alter  or  repair  any 
wooden  building  within  said  fire  limit,  and  any  person  <  r  corporation 
violating  the  same  shall  be  fined  fifty  dollars  ;  that  for  each  day  such 
person  or  corporation  continues  to  erect,  alter  or  repair  such  building 
it  shall  constitute  a  separate  violation  of  the  ordinance,  etc.  Sec.  37. 
That  any  person  who  shall  assist  in  constructing  or  repairing  any  build- 
ing prohibited  in  above  section  shall  be  fined,"*  etc. 

There  were  other  sections  of  the  ordinances  prohibiting  the  erection 
of  wooden  buildings  in  the  business  portion  of  the  city  without  the 
written  consent  of  the  aldermen,  etc.,  and  the  fire  limit,  1,000  feet  from 
the  Court  Square,  was  established,  etc. 

The  defendant  appealed  from  the  judgment.  j_      v.x.orv^*^-^ 

yjL.^-*^ ,  ilo-jtU*:^  />-4^^L  -^<-vn>X-,  —  Ajifi^c^rv.^  ^  1  '^is^ 


STATE   V.   JOHNSON. 


281 


Avery.  J.     Municipal  corporations  are  the  creatures  of  the  Legisla- 
ture, and  their  powers  may  be  curtailed,  enlarged  or  withdrawn  at  the 
will  of  the  creator,  whose  control  over  them  is  limited  only  by  the  re- 
striction that  no  statute  will  be  enforced  which  impairs  the  obligation 
of  a  contract,  interferes  with  vested  rights,  or  is  in  conflict  with  any  q 
provision  of  the  organic  law  of  the  State  or  nation.     It  is  too  wel  iV^*^"*^ 
settled  to  recapitulate,  or  even  justify  discussion,  that  towns  certainly    \^v?cl  -  . 
by  virtue  of  an  express  grant  of  authority  to  do  so,  and  according  to    W-* — .  Slj 
"most^  authorities    by   implication    arising   out   of   tlie   general    welfare 
clause,  If  tbere  is  no  general  law  to. the  contrary,  are  em[)o\vered  to 
"prescribe"^  fire  limit  and  forbid  the  erection  of  wooden  buildings  within] 
such  bounds  as  they  may  by  ordinance  prescribe.    15  Am.  and  Kng.  Enc, 
1170;   1  Dillon  Mun.  Corp.,  section  405;    Horr  &  Bemis  Mun.  Ord., 
section  222;  Keilinger  v.  BickeU  117  Pa.  St.  326.     The  weight  of  au- 
thority seems  to  be  also  in  favor  of  the  proposition  that  the  Legislature 
has  the  power  to  prevent  the  erection  of  wooden  buildings  in  such  cor- 
porations, or  to  delegate  to  the  municipalities  the  authority  to  do  so, 
even  where  the  enforcement  of  the  law  or  ordinance  causes  a  suspen- 
sion of  work  in  the  erection  of  structures  of  this  kind  by  persons  who 
are  carrying  out  contracts  for  their  erection  made  previously  with  the 
owners  of  the  land.     Cordon  v.  Miller^  11  Mich.  581  ;  Ex  parte  FisJce^ 
17  Cal.  125.     Persons,  in  contemplation  of  law,  contract  w-ith  reference  I Q tw:j 
to  the  existence  and  possible  exercise  of  this  authority  when  it  is  vested    i'  c<rAa 
in  the  municipality.     Salem  v.  Magness,  123  Mass.  574;  3fnn?i  v.  Illi-] 
nois,  94  U.  S.  113;    Woodlawn  CemHery  v.  Everett,  118  Mass.  354;    ^ 
Commissioners  v.   Intoxicating  Liquors^   115  Mass.   153.     Upon  this  p,y^,,*^^^ 
same  principle  all  agreements  for  building  are  deemed  to  be  entered 
into  in  view  of  the  contingency  _that  such  power  may  be  granted  by  the 
Legislature  (when  it  has  not  alread}'  been  delegated)  while  the  contract 
is  still  in  fieri.     15  Am,  and  Eng.  Enc,  1171. 

While  it  might  be  unreasonable  to  prohibit  even  the  slightest  repairs  |  (^"^^  ^^A 
to  wooden  buildings  standing  within  the  fire  limits  prior  to  the  passage  j'^;^'^^  ' ' 
of  a  statute  or  ordinance  establishing  such  limits,  the  power  to  prevent     ^\/^ 
repairs  is  delegated  and  presumably  exercised  for  the  protection  of   ^i 
property,  and  where  a  wooden  structure  within  the  bounds  is  partially  Cl>i^.J^v<j 
destroyed  by  fire  already  it  is  not  unreasonable  to  require  a  new  roof 
to  be  made  of  material  less  liable  to  combustion,  or  to  forbid  the  re- 


(\    <X^ 


pairs  altogether  when 


the  damage 


to  the  building  is  serious,  and  to 


that  end  to  compel  the  owners  to  give  notice  to  the  town  authorities  of  .  X^ 
their  purpose  to  repair,  and  of  the  character  of  the  contemplated  work.  Af^'"^ 
Village  of  Lewisville  v.  Webster,  108  111.,  414. 

We  are  aware  that  there  is  much  conflict  of  authority  as  to  the  rea- 
sonableness of  ordinances  forbidding  all  repairs  or  the  enforcement  of 
them  so  as  to  prevent  replacing  roofs  with  the  same  material  used  be- 
fore their  destruction.  Horr  &  Bemis,  section  223  (214) ;  Brady  v. 
Insurance  Co.,  11  Mich.  425;  Ex  jparte  Fiske,  sujrra.  But  in  this  par- 
ticular instance  the  Legislature  has  granted  a  municipality  the  power 


282 


NORFOLK   V.   FLYNN. 


I 


\^ 


\ 


,\ 


to  supervise  or  prevent  the  replacing  of  the  roof  with  another  of 
shingles  instead  of  constructing  one  of  material  less  liable  to  destruc- 
tion, and  we  are  not  prepared  to  question  its  authority  to  do  so,  since, 
upon  the  principle  already  announced,  persons  contracting  with  refer- 
ence to  the  chances  of  the  granting  as  well  a~s  the  exercisaof  auck  pow- 
ers  acquire  no  vested  rights,  and  afterwards  voluntarily  incurring  all  of 
the  I'isks  incident  to,  their  situation,  have  no  reason  to  comphiiu  of  the 
loss  when  it  befalls  them. 

The  Court  imposed  a  fine  of  fifty  dollars.  There  was  no  attempt  to 
enforce  the  portion  of  the  ordinance  imposing  a  penalty  of  ten  dollars 
for  every  hour  the  building  was  permitted  to  remain.  There  may  be 
more  doubt  as  to  the  reasonableness  of  that  provision.  Commissioners 
V .  WilkiTis,  121  Mass.  356.  But  it  is  not  necessary  to  pass  upon  a 
question  not  fairly  raised,  and  we  forbear  to  do  so.     The  judgment  is 

A^rmed. 


^w 


NORFOLK  V.   FLYNN. 
1903.     101  Va.  473. 


v^-*^ 

w^" 


Keith,  P.     The  police  justice  of  the  city  of  Norfolk  issued  a  war-  ,^^^ 


'^ 


rant  against  Joseph  E.  Flynn  for  violation  of  an  ordinance  creatin 
the  office  of  milk  inspector,  defining  his  duties,  and  regulating  tlie  sale      . 
of  milk  in  the  city  of  Norfolk.     The  police  justice  entered  a  judgment^: 
against  FIjmiu,  from  which  an  appeal  was  taken  to  the  Circuit  Court  op^^^^^^ 
tile  city  of  Norfolk,  where  it  was  reversed,  and  the  case  is  now  before  .^  t!o^ 
us  upon  a  writ  of  error  to  the  judgment  of  that  court.  .  "T* 

The  ordinance  in  question  prohibits  the  sale  of  impure,  diluted,  or'^^^^ 
unwholesome  milk,  prescribes  a  test  of  what  constitutes   pure  milk,  ^^tf*^^ 
creates  the  office  of  milk  inspector,  prescribes  his  duties,  requires  him  jv^*^ 
to  make  frequent  inspection  and  analysis  of  the  milk  sold  in  the  city,  i       ^ 
and  directs  him  to  report  all  violations  of  the  ordinance  to  the  Board  "^ 
of  Health.  yVt^ 

By  section  344,  c.  43,  of  the  Norfolk  City  Code,  it  is  provided  that 
"  every  person  who  conveys  milk  in  carriages  or  otherwise  for  the  pur- 
pose of  selling  the  same,  and  those  who  sell  or  offer  it  for  sale  iu  a 
store,  booth,  staTid  or  market  place  in  the  city  of  Norfolk,  shall  regis- 
ter annually  in  the  books  of  said  inspector,  on  the  first  day  of  May  "of 
each  year,  or  within  thirty  days  thereafter,  and  be  licensed  by  said 
inspector  to  sell  milk  within  the  limits  of  the  city  for  one  year.  Before 
said  license  is  granted  the  applicant  shall  be  required  to  pay.^ty  cents 
per_cow,  if  he  keeps  cows,  and  two  dollars  for  each  stand  or  depot,  if 
he  has  a  stand  or  depot,  for  the  sale  of  milk.  The  amount  so  collected 
shall  be  used  exclusively  for  the  purpose  of  paying  the  salary  and  ex- 
penses of  said  inspector.     And  whoever  neglects  so  to  register  or  vio- 


NORFOLK    V.   FLYNN. 


283 


lates  any  of  the  provisions  of  this  section  shall  be  punished  for  each 
offence  by  a  fine  of  not  less  than  five  nor  more  than  twenty  dollars. 
The  inspector  shall  pay  over  monthly  to  the  treasurer  of  the  city  all 
sums  collected  by  him."  a- 

Defendant  contends  that  this  section  is  invalid  because,^first,  no 
ordinance  of  the  city  of  Norfolk  can-^have  the  force  of  law  beyond 
the  corporate  limits  of  the  city ;  and^econdly,  because  it  is  in  viola- 
tion of  an  act  approved  March  3,  1890  (Acts  1895-96,  p.  685,  c.  625), 
which  is  as  follows:  "It  shall  be  unlawful  for  any  city  or  town  of 
this  State,  or  of  any  agent  or  officer  of  any  such  city  or  town,  to  im- 
pose or  collect  any  tax,  fine  or  other  penalty  upon  any  person  selling 
their  farm  and  domestic  products  within  the  limits  of  any  such  town 
or  city  outside  of  and  not  within  the  regular  market-houses  and  sheds. 
of  such  cities  and  towns."  (^ 

The  police  power  of  the  State,  so  far  as  it  is  necessary  to  protec 
the  health  of  its  inhabitants,  luis  been  delegated  to  the  city  of  Xorfo 


■  :     r- 


The  general  nature,  character,  and  extent  of  the  police  power  has  been 
so  recently  investigated  by  this  court  that  we  deem  it  unnecessary  to 
do  more  than  refer  to  the  cases.  Town  of  Farmville  v.  Walker,  43 
S.  E,  558,  101  Va.  323,  City  of  Danville  v.  Hatcher  (just  decided  by 
this  court) ;   101  Va.  523,  44  S.  E.  723. 

It  is  manifest  upon  the  face  of  the  ordinance  in  question  that  it  was, 
passed  in  the  exercise  of  the  police  power  of  the  city,  and  that  its  sole 
object  was  to  secure  to  the  people  of  Norfolk  pure  and  unadulterated 
milk.  It  is  a  matter  of  common  knowledge  that  milk  is  a  necessary 
food  of  the  sick  and  of  the  infirm,  of  the  old  and  of  the  young;  that 
through  the  agency  of  impure  milk  the  germs  of  many  diseases  are 
disseminated ;  and  even  where  there  is  the  absence  of  any  deleterious 
impurity  or  the  germs  of  specific  diseases,  adulterated  or  diluted  milk  \ 
is  not  wholesome  and  nutritious,  and  its  sale  in  its  least  injurious  as- 
pect is  a  fraud  upon  the  community.  Against  such  practices  it  is  the 
duty  of  the  constituted  authorities  to  protect  the  communities  under 
their  control.  The  ordinance  in  question  is  not  extra-territorial  in  its  j 
effect.  It  is  not  intended  to  operate  beyond  the  limits  of  the  city  of 
Norfolk.  It  only  touches  those  who  come  within  the  limits  of  the 
city  to  dispose  of  their  milk. 

This  subject  was  considered  in  the  case  of  State  v.  Nelson,  6G  Minn- 
166,  68  N.  W.  1066,  34  L.  R.  A.  318,  61  Am.  St.  Rep.  399.  In  that 
case  the  objection  was  made  "  that  the  provisions  of  the  ordinance 
are  not  within  the  limits  prescribed  for  it  by  the  statute,  for  the  reason 
that  it  is  attempted  to  make  its  operation  extra-territorial,  in  that  it 
provides  for  the  inspection  of  dairies  and  dairy  herds  outside  the  city 
limits.     There  is  no  merit  in  this  point. 

"  The  manifest  purpose  of  the  statute  under  which  this  ordinance 
was  passed  was  to  enable  the  City  Council  to  adopt  such  reasonable 
police  regulations  as  would  prevent  the  sale  of  unwholesome  milk 
within  the  city,  and  not  merely  to  prevent  the  keeping  of  unhealthy 


^w 


;\jS^. 


•^>>-Ji,^ 


284 


NORFOLK  V.   FLYNN. 


I^J»V-n-iiff 


3^ 


dairy  herds  within  the  city  limits.  It  is  a  matter  of  common  knowledge 
that  much  of  the  milk  sold  in  a  city  is  produced  in  dairies  situated  out- 
side the  city  limits.  Any  police  regulations  that  did  not  provide 
means  for  insuring  the~~wEblesomeness  of  milk  thus  brought  into  the 
city  for  sale  and  consumption  would  furnish  very  inadequate  protection 
toThe  lives  and  health  of  its  citizens.  It  is  also  a  matter  of  common 
knowledge,  as  well  as  of  proof  in  this  case,  that  the  wholesomeness  of 
milk  cannot  always  be  determined  by  an  examination  of  the  milk  itself. 
To  determine  it  does  or  does  not  contain  germs  of  any  contagious 
or  infectious  disease,  it  is  necessary  to  inspect  the  animals  which  pro- 
duce it.  The  inspection  of  dairies  or  dairy  herds  outside  the  city 
limits,  provided  for  by  this  ordinance,  applies  only  to  those  whose 
milk  product  it  is  proposed  to  sell  in  the  city.  The  provisions  of  the 
ordinance  in  that  regard  go  only  so  far  as  it  is  reasonably  necessary  to 
prevent  the  milk  of  diseased  cows  being  sold  within  the  city.  This 
inspection  is  wholly  voluntary  on  the  part  of  the  owner  of  the  dairy  or 
dairy  herd.  If  he  does  not  choose  to  submit  to  such  inspection,  the 
result  merely  is  that  he  or  the  one  to  whom  he  furnishes  milk  cannot 
obtain  a  license  to  sell  milk  within  the  city.  The  ordinance  has  no 
extra-territorial  operation,  and  there  has  been  no  attempt  to  give  it 
any  such  effect.  The  only  subject  upon  which  it  operates  is  the  sale 
of  milk  within  the  city." 

We  do  not  think  that  there  is  any  merit  in  the  first  contention. 

The  city  of  Norfolk  has  no  power  to  impose  any  tax,  fine,  or  penalty 
on  persons  selling  their  own  farm  and  domestic  products  in  contraven- 
tion of  the  Act  of  Assembly  of  March,   1896,  already  quoted.     The 
ordinance  of  the  city  under  consideration  does  not,  in  our  judgment 
K  '>    ^     levy  a  tax  or  impose  a  fine  or  penalty  within  the  purview  of  that  act. 
^,,  W>n*>^  We  are  of  opinion  that  it  was  not  the  purpose  of  the  Legislature  in 
''^;^ilS j that  act  to  impose  any  restriction  upon  the  city  in  the  exercise  of  the 


^^ 


w^' 


{<{' 


[^ 


police    power  delegated  to  it  for  the  protection  of  the  health  of  its 
o^i citizens;  and,  unless  plainly  required  so  to  do,  we  should  be  indis- 
'((^^^^     iposed  to  adopt  a  construction  which  would  render  the  city  powerless 
to  protect  the  health  of  its  citizens  from  the  sale  of  impure  or  adulter- 
ated milk.     The  means  adopted  seem  to  us  to  be  reasonable.     It  was 
necessary  to  the  end  in  view  that  there  should  be  an  inspector,  that  he 
should  have  the  power  to  take  samples  of  the  milk  and  have  them 
analyzed,  and  his  duties  involved  expenses  which  it  was  proper  that 
V^  \        those  engaged^  in  the  sale  of  milk  should  bear.      A  license  from  the 
^'^^^^         inspector  was  evidence  to  the  community  that  they  could  with  safety 
purchase  milk   from  the  dealer  to  whom  it  was  issued.     He  who  is 
licensed  should  not  complain,  because  he  derives  a  direct  and  impor- 
^  tant  benefit  from  it,  from  which  he  is  required  to  pay  a  reasonable 
compensation.     The    dealer   discovered  in  improper   practices  in  the 
effort  to  foist  upon  the  community  milk  unfit  for  use  has  no  right  to 
complain  if  he  has  been  detected  in  such  practices.     What  the  dealers 
are  required  to  pay  by  the  ordinance  is  not  for  purposes  of  revenue, 


v 


0 


^t^ 


NORFOLK   V.   FLYNN.  285 

ax,  but  is  an  inspectioa  fee,  designed  as  a  compensation  t  i_.     ' 
e  rendered.  |  ^ 


and  is  not  a  tax, 
for  the  service 

I'lie  bupfeme''Court'ortlie  United  States  is  jealous  to  guard  against  .  c; 
any  encroachment  by  the  States  upon  the  power  of  the  Federal  Gov-  I  /.^ 
ernmeut  to  regulate  commerce,  yet  it  has  been  held  that  fees  for  the    ^  '^" 

sanitary  examination  of  vessels  under  the  quarantine  laws  of  the 
States,  though  they  may  in  some  degree  tend  to  regulate  commerce 
with  foreign  nations  and  among  the  States,  are  a  valid  exercise  of 
the  police  power. 

In  Morgan  Railroad  Co.  v.  Board  of  Health  of  Louisiana,  118  U.  S. 
455,  6  Sup.  Ct.  1114,  30  L.  Ed.  237,  the  court,  after  discussing  the 
quarantine  laws  of  the  State  of  Louisiana  and  their  various  charges 
for  services  rendered  incident  thereto,  in  answer  to  the  claim  that  the 
sums  thus  exacted  were  in  effect  a  tonnage  tax,  forbidden  by  the  Con- 
stitution of  the  United  States,  and  exclusively  within  the  power  of  i^ 
Congress  to  regulate,  said:  "In  the  present  case  we  are  of  opinion  Ua-^-o-^^ 
that  the  fee  complained  of  is  not  a  tonnage  tax  ;  that,  in  fact,  it  is  not    •  -^-H^ 
a  '  tax,'  within  the  true  meaning  of  that  word  as  used  in  the  Constitu-   '^vs-^    ^ 
tion,    but  is  a  compensation  for  a  service   rendered,  as  part  of   the 
quarantine  system  of  all  countries,  to  the  vessel,   which  receives  the 
certificate  that  declares  it  free  from  further  quarantine  requirements." 

Paraphrasing  the  language  of  the  court  in  that  case,  the  city  of 
Norfolk  says  to  the  dealer :  If  you  appear  free  from  objection,  you 
are  relieved  by  the  officer's  certificate  of  all  responsibility  on  that  sub- 
ject. For  this  examination  you  must  pay.  The  danger  comes  from 
you,  and,  though  it  may  turn  out  in  your  case  there  is  no  danger,  yet, 
as  you  belong  to  a  class  from  which  this  kind  of  injury  comes,  you 
must  pay  for  the  examination  which  distinguishes  you  from  others  of 
that  class. 

We  are  of  opinion  that  the  ordinance  under  investigation  does  not, 
and  was  not  designed  to,  act  beyond  the  limits  of  the  city  of  Norfolk, 
but  operates  only  upon  those  who  undertake  to  sell  milk  within  the  ^ 
jurisdiction  of  the  city. 

\Ve  are  of   opinion  that  it  is  a  reasonable  exercise  of   the   police 


power,  and  that  the  charges  which  it  imposes  are  in  no  sense  a  tax, 
penalty,  or  fine,  but  fees  for  services  rendered ;  and  it  is  therefore  not 
repugnant  to  the  Act  of  Assembly  relied  upon  by  defendant  in 
error. 

The  judgment  of  the  Circuit  Court  must  be  reversed,  and  this  court 
will  enter  such  judgment  as  the  Circuit  Court  should  have  entered. 

Reversed. 


'iwj-A 


V^ 


^  >w 


/vA^ 


JUvUk 


286  PENNSYLVANIA   RAILROAD   COMPANY  S   CASE.       >-'"  t 

PENNSYLVANIA  RAILROAD  COMPANY'S  CASE.  ^^'-^  "       ^ 

1906.    213  Pa.  373.  ^'^i^'^'^C^^  ^ 

Brown,  J.  The  question  raised  on  this  appeal  is  as  to  the  power  of 
the  borough  of  North  Braddock  to  pass  an  ordinance  approved  April  7, 
1904,  entitled  "Ordinance  No.  133,  requiring  The  Pennsylvania  Rail- 
road Company  to  erect  and  maintain  and  operate  safety  gates  at  the 
point  where  the  tracks  of  said  railroad  company  cross  Fourth  street  in 
the  borough  of  North  Braddock  and  imposing  a  penalty  for  any  failure 
to  comply  with  the  provisions  hereof."  By  the  first  section  of  the  or- 
dinance the  appellant  is  required  within  sixty  days  from  its  approval 
to  erect,  maintain  and  operate  safety  <iates  at  the  point  designated  in 
the  title,  for  the  warning  and  protection  of  those  traveling  upon  Four'tK 
street.  By  the  second  section  a  penalty  is  provided  for  failure  to  com? 
ply  with  the  requirement  of  the  first. 

It  is  to  be  first  observed,  as  is  very  properly  stated  by  counsel  for 
appellant,  that  the  question  is  not,  (a)  Whether  the  borough  may  itself 
erect  and  maintain  gates  ;  (6)  nor  whether  a  given  crossing  ought  to  be 
protected  by  gates:  (c)  nor  whether  in  a  given  case,  a  railroad  com- 
pany might  be  found  guilty  of  negligence  in  failing  to  have  gates ;  (d) 
nor  whether  the  law  ought  to  compel  railroad  companies  to  maintain 
gates.  It  is  as  to  the  power  of  a  borough  to  require  a  railroad  company 
to  do  a  particular  thing,  which,  in  the  judgment  of  the  borough,  the 
company  ought  to  do  at  a  particular  point  for  the  safety  of  the  public  in 
connection  with  the  operation  of  its  road.  In  the  present  case  the 
question  is  as_to_the  powgjLof  this  borough  to  require  the  Pennsylvania 
Railroad  Company  to  adopt  what  it  regards  as  proper  means  forJ}he__ 
protection  of  the  public  at  a  designated  point  crossed  by  the  tracks  of 
the  company.  It  is  not  pretended  that  the  tracks  are  not  lawfully  on 
the  ritreet,  nor  that  the  railroad  company  has  not  the  right  to  run  its 
cars  over  them. 

I  In  the  operation  of  its  road  and  in  the  running  of  its  cars  the  judg- 
ment of  the  board  of  directors  of  a  railroad  company,  in  the  absence 
of  statutory  provision,  is  supreme  and  exclusive.  The  public  safety 
imperatively  requires  that  there  be  no  division  of  this  great  responsi- 
bility  with  others  —  not  even  with  municipalities  through  whose  limits 
railroads  may  run  —  for  division  of  it  would  be  the  shifting  of  it  in 
every  case  of  accountability  for  failure  to  properly  operate  the  road  or 
run  the  cars.  But,  while  this  is  true,  corresponding  duties  of  the  highest 
order  are  imposed  exclusively  upon  those  having  the  control  and  man- 
agement of  railroads.  One  of  these  is  to  adopt  and  use  suitable  and 
adequate  means  to  give  notice  of  approaching  trains  at  grade  crossings, 
which  are  always  more  or  less  dangerous,  and  the  failure  to  perform 
this  duty  is  negligence,  for  the  consequences  of  which  those  are  re- 
sponsible upon  whom  the  duty  is  imposed.  What  particular  ineaus, 
however,  shall  be  employed  to  protect  the  public  when  using  _street_sjog 


PENNSYLVANIA   RAILROAD   COMPANY'S   CASE. 


287 


highways  at  railroad  crossings  is  left  to  the  company  operating  the  road. 

the  law  merely  demapding  and  re(j[uiring  reasonable  care  in  view  of  all 

The  circumstances.     There  is  no  common-law  duty  on  the  part  of  the 


company  to  station  a  flagman  or  erect  gates  at  a  crossing ;  but  the 
failure  of  the  company  to  do  so  is  to  be  considered  with  other  facts  in 
every  given  case  in  determining  whether  the  company  was  negligent. 
Among  our  cases  announcing  this  rule  are  :  Phil'idelphia  &  ReacUntj 
II.  R.  Co.  V.  Ktllips,  ^S  Pa.  405  ;  Lehigh  Valley  B.  R.  Co.  v.  Brandt- 
maier,  113  Pa.  610;  Sdfred  v.  Penna.  R.  R.  Co.,  206  Pa.  399. 

What  is  attempted  by  the  appellee  in  the  present  case?     Having  no 


:a. 


1 1 


voice  in  the  operation  of  the  aitpellaut's  road,  it  undertakes  to  do  what 
the  common  law  itself  does  not  do.     It  assumes  to  declare  how  the  rail-  • 

joad  shall  perform  a  pulilic  duty  at^aTparticular  "point,    and   would         *<'-3-if 
substitute  its  iudLrment  for  that  of  the  board  of  directors  as  to  what  kind 
oTjTroteetiou  shall  be  afforded  at  the  grade  crossing,  but  with  no  corrcs-' 
poudiiiLi  responsibility  resting  on  it  for  the  inadequacy  of  the  means 

"which  it  declares  must  be  adopted.  If  it  has  power  to  require  the  appel- 
lant to  erect  safety  gates,  it  has  the  power  to  require  the  adoption,  from 
time  to  time,  of  such  other  means  as  in  its  judgment  ought  to  be  adopted 
by  the  company  for  the  protection  of  the  public  at  street  crossings. 
The  power  for  which  it  contends  would  be  practically  unlimited. 

That  the  api)eTree  is  attempting  to  substitute  municipal  control  ior\^  i^)i^ 
that  of  the  railroad  company  itself  at  a  particular  point  by  declaring 


just  how  the  duty  of  the  company  must  be  there  performed,  is  too  plain  T""^  \^ 
for  discussion.  If  the  borough,  in  its  judgment,  ought  itself  to  adopt/  ^-Wv^ 
means  for  the  protection  of  the  traveling  public  at  this  or  any  other 
point  within  the  municipal  limits,  there  is  nothing  to  prevent  it  from 
doing  so ;  but,  before  it  can  interfere,  as  it  would  by  this  ordinance, 
with  the  railroad  company  in  its  performance  of  its  duty  to  protect  the 
public  at  the  crossing,  it  must  show  authority  from  the  legislature  to  do 
so,  ex[)resslY  or  iuipliedly  conferred.     The  power  wiiich  it  would  exer- 


cise  may  be  a  desirable  one,  but  courts  cannot  recognize  it  unless  it 
exists. 

Municipal  corporations  possess  and  can  exercise  such  powers  only  as 
are  granted  in  express  words,  or  are  necessarily  or  fairly  implied  in  or 
incident  to  those  expressly  granted,  or  those  which  are  indispensable 
to  the  declared  objects  and  purposes  of  the  municipality :  1  Dillon  on 
Municipal  Corp  (-Ith  ed.),  sec.  89;  20  Am.  &  Eng.  Encj'C.  of  Law  (2d 
ed.),  page  1139.  Doubt  as  to  corporate  power  is  resolved  against  its 
existence,  and  this  is  no  less  true  of  a  municipality  than  of  a  private 
corporation,  for  the  source  of  the  power  of  each  is  the  same.  Answer 
may  be  made  to  this  that  a  municipality,  as  the  representative  of  the 
state,  has  imparted  to  it  inherent  police  power.  This  is  true,  and  it  is/  (Tky-Ci—t 
contended  that  the  appellee  is  but  exercising  such  power ;  but  the  distine 
tion  is  overlooked  that  it  is  not  itself,  at  the  expense  of  the  public, 
undertaking  to  exercise  control  over  the  streets  and  to  protect  the  public 
at  the  railroad  crossing,  but  is  attempting  to  require  some  one  else  to  do 


< 


^v>«4c^^fr>^  i^ 


L 


288 


PENNSYLVANIA   EAILKOAD   COMPANY'S   CASE. 


so  at  its  own  expense.  It  has  undoubted  power  to  do  the  former  if  it 
will,  but,  to  do  the  latter  through  the  ordinance  which  it  has  passed, 
authority  to  enact  the  same  must  appear.  Thg  use  of  the  street  incross^^ 
ing  it  is  a  public  use  of  it  by  the  railroad  company  having  a  legislative 
righrio  so  use  it  on  an  equality  with  any  natural  person,  except  as  such 
right  may  be  limited  in  the  grant  of  it,  and  the  attempted  interference 
with  this  right  must  fail,  unless  the  borough  can  point  to  its  power  to 
^oTinterfere,  expressly  or  impliedly  existing.. 

Among  the  express  powers  conferred  upon  boroughs  by  the  act  of 
1851,  the  one  sought  to  be  exercised  here  does  not  appear.  By  the  first 
clause  of  the  second  section  of  that  act  borough  authorities  are  empow- 
ered generally  ''to  make  such  laws,  ordinances,  by-laws  and  regula- 
tions, not  inconsistent  with  the  laws  of  this  commonwealth,  as  they 
shall  deem  necessary  for  the  good  order  and  government  of  the 
borough."  In  the  succeeding  twenty-five  clauses  of  the  same  secHon" 
are  found  the  powers  expressly  conferred,  but  the  power  to  pass  this 
ordinance  is  not  one  of  them.  In  Borough  of  Millerstown  v.  Bell  et  al., 
123  Pa.  151,  this  court,  through  Paxson,  J.,  said:  "  The  general  pow- 
ers referred  to  in  the  first  section  must  be  confined  to  the  particular 
subjects  referred  to  in  the  succeeding  sections."  Without  now  commit- 
ting ourselves  to  this,  it  is  clear  that  tlie  good  order^and  government  of  a 
borough,  referred  to  in  the  first  clause,    are  not  involved  in  the  or- 


dinance.    The  good  order  of  a  borough  can  be  preserved  and  it  can  be 


AT^. 


^'       ^ 

^ '    \h^  properly  governed,  no  matter  how  many  railroads  cross  its  streets  by 

}  Aa)JH^^-<.   legislative  permission,  and  no  matter  how  fast  cars  maj'  run  over  them. 

A>uvyvw^We  assume  this  is  the  clause  designated  by  the  Superior  Court  as  the 

J^fjJ^*^' general  welfare  clause" —  "broad  enough,"  in  the  opinion  of  that 

court,   "to  cover  the  municipal  legislation  complained  of."     For  the 

reason  just  given  we  cannot  concur  in  this. 

The  case  of  Commonwealth  v.  Philadelphia^  Harrishurg  &  Pittsburg 
Railroad  Co.,  23  Pa.  Superior  Ct.  205,  was  relied  upon  by  the  Superior 
Court  as  authority  to  sustain  the  action  of  the  lower  court.  In  that 
case  the  Superior  Court  held  that  the  three  following  cases  were  author- 
ity for  the  power  of  a  borough  to  pass  such  an  ordinance  as  is  now 
under  consideration  :  Penna.  B.  R.  Co.  v.  Duq^iesne  Borough,  46  Pa. 
223  ;  Township  of  Newlin  v.  Davis,  77  Pa.  317,  and  Pennsylvania  Rail- 
road Co.  V.  Irwin,  85  Pa.  336.  An  examination  of  these  cases  does 
not  justify  reference  to  them  as  authority  for  the  power  claimed  by  the 
appellee.  In  the  first,  the  railroad  company,  which  had  become  the 
owner  of  the  canal,  succeeded  to  the  duty  of  maintaining  a  bridge  over 
it.  Having  failed  to  perform  that  duty,  it  was  held  that  the  borough 
authorities,  as  the  proper  public  officers  to  look  after  the  pul)lic  highways, 
had  the  right  to  repair  the  bridge  and  to  recover  the  expense  of  doing 
so  from  the  railroad  company.  In  the  second,  the  action  was  against 
a  township  for  injuries  resulting  from  a  defective  bridge.  All  that  was 
decided  was  that  it  was  the  duty  of  the  township  to  properly  maintain 
it.     In  the  third,  the  railroad  company  changed  the  location  of  a  public 


WINEBUKGH   V,   MURPHY. 


289 


road,  necessitating  the  building  of  a  bridge,  and  it  was  simply  decided 
that,  the  company  having  failed  to  rebuild  and  repair  the  bridge,  the 
township  could  recover  the  cost  of  doing  so  from  the  company.  A 
fourth  case  cited  by  the  Superior  Court,  in  Comriiomvealth  v.  Philadel- 
phia, Harrisburg  &  Pittsburg  Railroad  Co.,  is  Pennsylvania  Co.  v. 
Watson^  81*  Pa.  293.  The  reference  was  intended  to  be  to  another  case 
reported  in  the  same  volume  —  Pen?isijlvania  Co.  v.  James,  81  *  Pa.  194 
—  in  which  there  appears  the  language  quoted  in  the  opinion  of  the  Su. 
perior  Court  as  to  the  police  powers  of  boroughs.  But,  turning  to  the 
charge  of  the  court  below,  as  found  on  page  198,  it  appears  that  power 
had  been  conferred  by  the  legislature  to  pass  the  ordinance  which  was 
under  consideration.  The  legislature  might,  of  course,  have  done  so  \ 
here,  but  it  has  not.  By  the  Act  of  March  7,  1901,  P.  L.  20,  cities  of  the 
second  class  are  authorized  to  enact  ordinances  requiring  the  erection  of 
safety  gates  and  the  placing  of  flagmen  at  the  intersection  of  raili*oads 
with  public  streets,  and  by  the  Act  of  May  23,  1889,  P.  L.  277,  the  same 
authority  is  conferred  upon  cities  of  the  third  class. 

As  a  borough  of  North  Braddock  had  no  power  to  pass  the  ordinance 
complained  of  it  is  declared  to  be  invalid,  and  the  order  of  the  Superior 
Court,  affirming  the  order  of  the  court  below  sustaining  it,  is  reversed, 
the  costs  below  and  on  both  appeals  to  be  paid  by  the  appellee. 


WINEBURGH  v.  MURPHY. 
195  N.  Y.  126. 


;hase,  J.     The  relator  is  a  domestic  corporation  engaged  in  the  rj-,^^,^^ 
business  of  constructing  and  maintaining  advertising  signs  and  display-  t^^J^^Ij, 
ing  thereon  advertisements  pursuant  to  contracts  with  advertisers.  .       S^ 

On  June  15,  1908,  the  relator  duly  filed  an  application  for  a  permit 
^xto  erect  a  sky  sign  on  the  top  of  a  building  at  27  East  Twentj^-second    ^*  ^-^^^ 
street,  in  the  city  of  New  York,  and  such  application  was  accompanied'%>.>-^-«-«-5 
by  a  plan  thereof  in  detail,  and  also  with  the  consent  of  the  owner  of  /\j>srf\  < 
the  real  property  on  which  it  was  proposed  to  erect  the  sign.    From 
such  application  and  the  accompanying  papers  it  appears  that  the  build- 
ing upon  which  it  is  proposed  to  erect  the  sign  is  an  office  building  ten 
Stories  in  height,  and  that  it  is  proposed  to  erect  the  sign  in  compliance 


j^fS^^'"^^  with  the  ordinances-and  regulations  of  the  city  of  New  York  except  that 
^     e      the  proposed  signals  more  than  nine  feet  in  height  above  the  front  waTT 


or  cornice  of  the  building.  The  proposed  sig^n  w.ould  be  five  feet  six 
inclies  ab'ove  the  roof  and  the  top  thereof  would  be  twenty  feet  six  inches 
above  said  front  wall_(.)r  cornice.  It  is  proposed  to  erect  saicT  sigiTTT?^ 
tween  forty  and  fifty  feet  back  from  the  building  line  on^  Twenty- 
Second  street  and  to  face  it  northwest  and  substantially  in  the  direction 


290 


WINEBUKGH   V.   MUEPHY. 


vX- 


^ 


of  the  rear  of  the  building.  It  is  intended  for  the  display  of  advertise- 
ments to  be  seen  from  points  in  the  city  northwest  of  said  building. 
The  defendant  refused  to  approve  the  specifications,  plans  and  appli- 
cation or  to  issue  a  permit  for  the  erection  of  said  sign,  solely  because  of 
an  ordinance  of  said  city  limiting  the  height  of  sky  signs  to  nine  feet 
above  the  front  wall  or  cornice  of  the  building  on  which  it  is  to  be 
erected.  The  application  was  then  made  for  a  peremptory  writ  of 
mandamus  to  compel  the  issuing  of  such  permit.  The  motion  being 
denied  an  appeal  was  taken  to  the  Appellate  Division  where  the  order 
was  not  only  reversed  but  a  writ  was  gTauted  commanding  the  defend- 
ant "to  examine  the  plan  and  application  filed  by  the  relator  and  de- 
scribed in  its  petition  with  reference  to  the  material  to  be  used  and  the 
method  of  construction  thereof  and  as  to  the  safety  thereof,  and  if  he 
shall  find  that  the  said  structure  is  to  be  built  of  proper  materials  and 
in  a  proper  manner  and  that  the  proposed  structure  is  safe  and  secui'e, 
then  to  approve  said  application  and  issue  a  permit  thereon." 

The  consent  of  the  owner  of  said  real  property  is  based  upon  a  sub- 
stantial consideration  paid  to  her  therefor  and  the  relator  has  entered 
into  a  contract  with  an  advertiser  for  the  use  of  such  sign,  th.e  con- 
sideration for  which  is  also  a  substantial  sum. 

It  is  not  open  to  controversy  that  if  the  relator  is  not  allowed  to  erect 
and  maintain  such  sign  the  owner  of  said  building  and  the  relator  as 
her  lessee  is  deprived  of  some  rights  in  the  beneficial  use  and  free  en- 
joyment of  private  property  v/ithout  direct  compensation. 
-  The  ordinance  of  the  city  of  New  York  to  be  construed  on  this  ap- 
peal defines  a  sky  sign  and  as  so  defined  it  is:  "Anyietter,  word,  model, 
sign,  device  or  representation  in  the  nature  of  an  advertisement,  an- 
nouncement or  direction  supported  or  attached,  wholly  or  in  part  over 
or  above  any  wall,  building  or  structure  shall  be  deemed  to  be  a  'sky 


SIO'U 


5  » 


.> 


The  ordinance  (section  144  of  the  Building  Code  of  the  city  of  New 
York)  also  provides  as  follows:  "Sky  signs  shall  be  constructed  en- 
tirely of  metal,  including  the  uprights,  supports  and  braces  for  same, 
and  shall  not  be  at  any  point  over  nine  feet  above  the  front  wall  or 
:ornice  of  the  building  or  structure  to  which  they  are  attached  or  by 
ivhich  they  are  sup}X)rted. 

All  fences,  signs,  billboards  and  sky  signs  shall  be  erected  entirely 
within  the  building  line  and  be  properly  secured,  supported  and  braced 
and  shall  be  so  constructed  as  not  to  be  or  become  dangerous.  Before 
the  erection  of  any  fence,  sign,  billboard  or  sky  sign  shall  have  been 
commenced  a  permit  (for)  the^erectjon  of  the  same  shall  be  obtained 
from  the  Superintendent  of  Buildings  having  jurisdiction  as  provided 
in  part  2,  section  4  of  this  Code.  Each  application  for  the  erection  of 
any  fence,  sign,  billboard  or  sky  sign  shall  be  accompanied  by  a  writ- 
ten consent  of  the  owner  or  owners  or  the  lessee  or  lessees  of  the  prop- 
erty upon  which  it  is  to  be  erected." 

It  is  uot  the  erection  over  and  above  any  wall,  building  or  structure 


WINEBURGII   V.   MURPHY. 


291 


that  is  prohibited,  but  the  thing  constructed  phis  the  letter,  word, 
model,  sign,  device  or  representation  in  the  nature  of  an  advertisement, 
announcement  or  du'ection  painted  or  pasted  thereon  or  attached 
thereto. 

So  far  as  appears  there  is  no  absoUite  limitation  upon  the  height  that  \ 
tanks,  towers  or  chimnej's  can  be  erected,  nor  as  to  flagpoles,  balus- 
trades, finials  or  other  structures  ornamental  or  useful.  If  it  appeared 
in  the  relator's  application  that  the  structure  proposed  to  be  erected  was 
not  for  the  purpose  of  advertising,  but  for  any  other  purpose,  fancy  or 
whim,  it  would  not  come  within  the  prohibitive  clause  of  the  ordinance. 
A  further  examination  of  the  ordinance  shows  that  it  relates  wholly  to 
erections  within  the  building  line  and  upon  private  property.  It  is  in 
no  way  affected  by  the  rules  of  law  relating  to  street  or  municipal  prop- 
erty. As  private  property  the  owner  of  the  building  on  which  it  is 
proposed  to  erect  the  structure  can  use  it  in  any  way  that  to  her  may 
seem  desirable,  except  as  such  use  is  subject  to  the  implied  obligation 
resting  upon  every  owner  of  property  to  use  it  so  as  not  to  interfere 
with  the  rights  of  others,  and  also  subject  to  such  restrictions  as  are 
necessary  for  the  public  welfare. 

The  police  power,  so  difficult  to  define,  but  so  frequently  invoked,  is 
conllueci  to  such  reasonable  restrictions  and  prohilntious  as  are  iieces- 
sary  to  guard  public  health,  morals  and  safety,  and  to  conserve  public 


peace. 


order  and  the  seueral  welfare.     Regulations   and  ordinances 


within  such  general  definition  are  valid.  The  city  may  make  and  en- 
force such  regulations  and  ordinances,  althougli  they  interfere  with 
and  restrict  the  use  of  private  property.  Compensation  for  such  in- 
terference with  and  restriction  in  the  use  of  property  is  found  in 
the  share  that  the  owner  enjoys  in  the  common  benefit  secured  to  all. 

Does  the  ordinance,  so  far  as  it  relates  to  sky  signs,  come  within  the 
police  power,  or  is  its  purpose  simply  to  prevent  or  restrict  a  lawful 
business  which  it  is  alleged  has  been  extended  until  it  has  become  of- 
fensive to  good  taste  ? 

It  is  not  asserted  by  the  city  that  a  sky  sign,  as  defined,  in  the 
ordinance  or  as  proposed  by  the  relator,  has  any  relation  whatever  to 
or  effect  upon  public  health  or  public  morals.  The  only  alleged  reason 
for  the  passage  and  enforcement  of  the  ordinance  is  that  a  structure 
upon  which  advertisements  are  to  be  placed  constitutes  a  danger  by 
reason  of  the  possibilit}'  of  its  falling  into  a  public  street.  The  dan- 
ger, so  far  as  it  interferes  with  firemen  in  passing  over  the  roof  of 
a  building,  is  apparently  avoided  in  the  case  now  before  us  by  the  pro- 
vision that  the  structure  on  which  the  sign  is  to  be  erected  will  have  a 
clear  space  of  five  feet  and  six  inches  between  the  roof  and  the  bottom 
of  the  proposed  structure.  A  structure  nine  feet  in  height  would  seem 
to  be  as  great  an  interference  with  firemen  in  passing  over  the  roof  as 
one  erected  at  a  greater  height. 

An   ordinance   drawn   to  protect  the  public  from  physical  danger 
should  in  terms  bear  some  evidence  of  such  purpose.     So  far  as  the 


\. 


Cv\^ 


292 


WIXEBUEGH  V.   MURPHY. 


c«^ 


t«r''^ 


•.;^ 


-nZ-^ 


ordinance  in  question  relates  to  sky  signs,  it  is  general  in  its  terms  and 
it  is  as  prohibitive  in  remote  parts  of  the  city  as  in  the  congested  parts 
thereof,  and  to  a  structure  erected  at  a  safe  distance  from  any  street 
or  public  place  as  one  erected  upon  the  front  wall  or  cornice  of  a  build- 
ing situated  upon  the  building  line  of  a  public  way.  The  prohibited 
height  is  also  based  upon  an  arbitrary  ir.easurement  above  the  front 
•wall  or  cornice  of  the  building,  notwithstanding  the  height  of  the  build- 
ing at  the  place  where  it  is  proposed  to  erect  the  structure  may  be 
much  less  or  more  than  at  such  front  wall  or  cornice  of  the  buildino;. 
The  prohibition  is,  therefore,  not  dependent  upon  the  dangerous  loca- 
£ion_of  the  structure  nor  is  it  based  upon  the  height  or  safety  of  the* 
particular  thing  constructed. 

"~  But  the  more  serious  objection  to  the  ordinance  is  in  the  fact  that 
the  absolute  prohibition  is  confined  wholly  to  sky  signs  as  they  are 
defined  therein.  The  physical  danger  to  the  public  does  not  arise 
from  the  advertisements.  The  advertisement,  announcement  or  direc- 
tion bears  no  relation  to  the  safety  of  the  structure  itself.  It  is  not 
the  structure,  therefore,  that  is  prohibited.  Would  a  structure  of  any 
description  be  more  dangerous  if  it  bore  the  words  "Omega  Oil?" 
Could  a  city  enact  and  enforce  an  ordinance  limiting  the  height  of  all 
buildings  therein  which  are  painted  a  particular  color  and  leave  unre- 
stricted the  height  to  which  a  building  could  be  erected  so  long  as  it 
was  unpainted  or  painted  a  color  other  than  the  particular  one  speci- 
fied ?  Such  an  ordinance  would  bear  evidence  in  itself  that  it  was  not 
enacted  for  any  purpose  within  the  police  power.  It  appears  from  the 
ordinance  in  question  that  it  was  not  enacted  in  the  interest  of  public 
health,  morals  or  safety  or  to  conserve  public  peace,  order  and  general 
welfare,  and  the  ordinance  so  far  as  it  relates  to  sky  signs  is  arbitrary 
and  unauthorized. 

This  court  in  C%  of  Rochester  v.  West,  164  N.  Y.  510,  sustained 
an  ordinance  forbidding  the  erection  of  billboards  more  than  six  feet 
in  height  ivithout  the  consent  of  the  common  council.  The  court,  re- 
ferring to  the  charter  of  the  city,  say:  "We  think  this  statute  con- 
ferred upon  the  common  council  of  the  city  authority  to  regulate  boards 
erected  for  the  purpose  of  bill  posting,  so  far,  at  least,  as  such  regula- 
ion  was  necessary  to  the  safety  or  welfare  of  the  inhabitants  of  the 
city,  or  persons  passing  along  its  streets.  ...  It  is  obvious  that  its 
purpose  was  to  allow  the  common  council  to  provide  for  the  welfare 
and  safety  of  the  community  in  the  municipality  to  which  it  applied. 
If  the  defendant's  authority  to  erect  billboards  was  wholly  unlimited 
as  to  height  and  dimensions,  they  might  readily  become  a  constant 
and  continuing  danger  to  the  lives  and  persons  of  those  who  should 
pass  along  the  street  in  proximity  to  them."      (p.  513.) 

In  Commontvealth  v.  Boston  Advertising  Company,  188  Mass.  348, 
the  court  held  invalid  an  ordinance  or  regulation  relating  to  signs, 
posters  or  advertisements,  and  say:  "  The  plain  and  intended  purpose 
of  the  rule  is  to  prohibit  the  use  of  land  near  public  parks  and  park- 


WINEBURGH   V.    MURniY. 


293 


ways  for  advertising Rules  intended  to  prohibit  advertisements 

of  indecent  or  immoral  tendencies,  or  signs  dangerous  to  the  physical 
safety  of  the  public,  no  doul^t  would  be  reasonable  within  the  meaning 
of  the  statute  and  valid.  We  think  the  case  of  Rochester  v.  West., 
164  N.  Y.  510,  was  decided  and  can  rest  only  on  this  ground." 

We  quote  from  the  head  note  in  Bryan  v.  City  of  Chester,  212  Penn. 
259,  which  fairly  states  the  holding  of  the  court  as  stated  in  the 
opinion  as  follows:  "A  municipality  has  no  power  to  enact  an  ordi- 
nance forbidding  citizens  to  erect  billboards  on  tlieir  own  property 
merely  because  such  boards  are  unsightly  or  may  create  a  nuisance. 
Any  citizen  against  whom  such  an  ordinance  is  sought  to  be  enforced 
is  entitled  to  the  protection  of  a  court  of  equity.  Under  the  police 
powers  of  a  municipality  it  may  prohibit  the  erection  of  insecure  bill- 
boards within  its  limits,  prevent  the  exhibition  from  secure  ones  of 
immoral  or  indecent  advertisements  or  pictures,  and  protect  the  com- 
munity from  any  actual  nuisance  resulting  from  the  use  of  them,  but  it 
can  go  no  further.  All  statutory  restrictions  of  the  use  of  property 
are  imposed  upon  the  theory  that  they  are  necessary  for  the  safetj', 
health,  or  comfort  of  the  public,  but  a  limitation  without  reason  or 
necessity  cannot  be  enforced." 

In  Crawford  V.  City  of  Topeka,  51  Kan.  756,  the  court,  construing     yi-^-^ 
an  ordinance  that  provided  that  no  billboard  or  structure  for  advertis-       c^.^c^^ 

ing  purposes  should  be  erected  unless  at  a  certain  distance  from  the 

line  of  the  street,  say:  "The  unreasonableness  of  the  ordinance  in 
question  is  easily  seen  when  it  is  considered  that  the  mere  posting  of  a 
harmless  paper  upon  a  structure  changes  it  from  a  lawful  to  an  unlaw- 
ful one.  A  person  may  erect  a  fence  around  his  lot  without  violating  the 
ordinance ;  but  just  as  soon  as  an  advertisement  is  posted  or  painted 
thereon  it  is  brought  within  the  condemnation  of  the  ordinance,  and 
the  owner  is  liable  to  prosecution  and  punishment." 

In  Bill  Posting  Sign  Company  v.  Atlantic  City,  71  N.  J.  Law,  72, 
the  court  held  that  an  ordinance  forbidding  the  erection  of  signs  upon 
private  property  in  Atlantic  City  without  regard  to  whether  such  signs 
may  be  dangerous  to  public  safety  is  invalid,  and  in  the  opinion  the 
court  say:  "  The  recognition  of  a  power  so  wide  would  bestow  upon 
the  lawmaker  the  right  to  invest  cities  with  authority  to  control  the 
size  and  style  of  buildings  which  should  be  erected  upon  private  prop- 
erty where  the  public  safety  was  in  no  wise  involved." 

In  City  of  Passaic  v.  Patterson  Bill  Posting  Adcertising  &  Sign 
Painting  Company,  72  N.  J.  Law,  285,  the  court,  referring  to  an 
ordinance,  say  :  "The  very  fact  that  this  ordinance  is  directed  against 
signs  and  billboards  only,  and  not  against  fences,  indicates  that  some 
consideration  other  than  the  public  safety  led  to  its  passage.  It  is 
obvious  from  the  face  of  the  ordinance  that  the  object  of  the  first  sec- 
tion was  not  to  secure  the  public  safety ;  that  section  contains  no 
reference  to  a  dangerous  condition  of  billboards,  \^hile  the  second  sec- 
tion expressly  undertakes  to  deal  with  those  that  become  dangerous. 


'^. 


^rt  ^^  :.h\ 


2.94  WINEBURGH    V.    MUKPHY. 

.  .  .  u3Esthetic  considerations  are  a  matter  of  luxury  and  indulgence 
rather^thau  of  necessity,  and  it  is  necessity  alone  wliich  justifies  tlie  exei-- 
cise  of  tHe  police  pbwei^  to  take  private  property  without  compensation." 

In  City  of  Chicago  v.  Gunning  System^  214  111.  628,  the  court,  ia 
condemning  an  ordinance  prohibiting  certain  billboards,  say:  "The 
purpose  .  .  .  seems  to  be  mainly  sentimental,  and  to  prevent  sights 
which  may  be  offensive  to  the  esthetic  sensibilities  of  certain  indi- 
viduals  residing  in  or  passing  through  the  vicinity  of  the  billboards." 

A  municipality,  in  enacting  ordinances  relating  to  the  safety  of  the 
public,  may  undoubtedly  make  reasonable  classifications  among  struc- 
tures with  reference  to  their  location  and  the  necessity  or  importance 
thereof  without  offending  against  the  provisions  of  the  fourteenth 
amendment  of  the  Federal  Constitution.  The  classification,  as  well  as 
the  ordinance  itself,  must  be  based  upon  some  necessity  justifying  the 
exercise  of  the  police  power.  It  has  been  said  that  the  police  power 
of  a  municipality  is  allied  to  the  right  of  self  preservation  in  an  indi- 
vidual. In  exercising  such  power  or  right,  the  purpose  thereof,  and 
the  limitations  thereon,  should  not  be  forgotten.  The  classification 
of  the  sky  sign  by  the  ordinance  in  question  is  dependent  upon  the 
letter,  word,  model,  sign,  device  or  representation  in  the  nature  of  an 
advertisement,  announcement  or  direction  and  it  has  no  direct  relation 
to  the  safety  of  the  public.  An  ordinance  which  purports  to  legislate 
for  public  safety  must  tend  in  some  appreciable  way  to  that  end.  Un- 
less there  is  a  substantial  connection  between  the  assinned  purpose  of 
the  ordinance  and  the  end  to  be  accomplished,  such  ordinance  is  un- 
inforceable.  Matter  of  Jacobs,  98  N.  Y.  98;  People  v.  Orange  Co. 
Road  Cons.  Co.,  175  N.  Y.  84;  People  v.  Gillson,  109  N.  Y.  389; 
Health  Department  v.  Rector,  etc.,  145  N.  Y.  32;  People  v.  Ewer,  141 
N.  Y.  129  ;  Fisher  Co.  v.   Woods,  187  N.  Y.  90. 

We  think  that  the  order  of  the  Appellate  Division  was  right,  and 
that  it  should  be  affirmed,  with  costs. 

Haight,  J.     I  concur  for  affirmance. 

The  ordinances  of  the  city  of  New  York  pertaining  to  the  height  and 
manner  of  construction  of  fences,  signs  or  billboards,  whether  upon 
the  ground  or  housetops,  are  for  the  protection  of  the  public  from  in- 
jury, and  consequently,  if  reasonable,  are  valid  under  the  police  powers 
which  the  legislature  has  delegated  to  the  board  of  aldermen.  The 
only  difliculty  I  find  with  reference  to  the  ordinance  pertaining  to  sky 
signs  is  with  regard  to  the  definition  given  thereof  in  the  ordinance. 
It  is  that  "any  letter,  word,  model,  sign,  device  or  representation  in 
the  nature  of  an  advertisement,  announcement  or  direction  supported 
or  attached,  wholly  or  in  part  over  or  above  any  wall,  building  or  struc- 
ture, shall  be  deemed  a  sky  sign."  If,  therefore,  the  letter,  word, 
model,  sign  or  device  is  attached  to  any  lawful  structure  upon  the  top 
of  a  building  it  would  become  a  sky  sign,  and  if  over  nine  feet  above 
the  front  wall  or  cornice  of  the  building  would  come  within  the  con- 
demnation of  the  ordinance.     It  is  not  the  letter,  word,  model,  sign 


ROCHESTER   V.   MACAULEY-FIEN    MILLING   CO.  295 

or  device  that  endangers  the  public  safety,  but  it  is  the  structure  upon 
which  such  letter,  word,  model,  sign  or  device  is  attached  that  may  be      -     . 
dangerous.     It   would,  therefore,  be  entirely  proper   and  within   the     dtt^ 
police  powers  of  the  municipality,  through  its  board  of  aldermen,  to 
enact  an  ordinance  limiting  the  construction  of  fences,  signs  or  bill- 
boards, either  upon  the  ground  or  the  housetops,  to  those  that  are  safe,  i 
and  to  also  designate  the  material  and  manner  in  which  they  shall  bel 
constructed  and  to  limit  the  size  or  height  thereof  witLiin  reasonable!  cy-v-'JKI 
bounds. 


^  -  v>e:^     — t^^^-  -  t^mu^ 


'^.j^X^      ROCHESTER  v.   MACAULEY-FIEN  MILLING  CO. 


1910.     199  .V.  Y.  207. 


The  common  council  of  the  city  of  Rochester  duly  enacted  an  ordi- 
d^  nance  regulating  the  emissiou  of  smoke  from  chimneys..    The  defend- 

V  ,'=^^'  ''ant  is  a  domestic  corporation  operating  aiid  conducting  a  flour  mill  in 
v^(  '  said  city.  After  the  ordinance  quoted  became  in  force  as  a  law  of  the 
'  ^  city,  and  on  November  2,  1906,  the  defendant  continuously  between 
^v>^k  lO:16  A.  M.  and  11:15  A.  M.  suffered  and  permitted  the  escape  of 
/ff^     smoke  from  a  stationary  smokestack  on  said  flour  mill,  in  violation  of 

said  ordinance. 
"^  This  action  was  commenced  in  the  Municipal  Court  of  the  city  of 

Rochester  to  recover  of  the  defendant  twenty-five  dollars,  the  penalty 
for  such  disobedience  of  said  ordinance.  Judgment  was  recovered 
against  the  defendant,  which  has  been  affirmed  by  the  County  Court  of 
the  county  of  ^Monroe  and  the  Appellate  Division  of  the  Supreme  Court 
in  the  fourth  judicial  department  respectively  on  appeals  to  such  courts 
and  an  appeal  is  taken  by  permission  from  the  judgment  of  the  said 
Appellate  Division  of  the  Supreme  Court  to  this  court.  ^ 

•  •••••••« 

Chase,  J.  At  the  time  when  this  action  was  commenced  Rochester 
was  a  city  of  the  second  class,  governed  by  the  Second  Class  Cities 
Law  (Chapter  55  of  the  Laws  of  1909),  which,  so  far  as  we  are  now 
concerned,  is  a  re-enactment  of  chapter  182  of  the  Laws  of  1898.  Said 
act  of  1898  was  in  force  when  said  ordinance  was  enacted.  The  com- 
mon council  of  the  city  is  vested  with  legislative  power  by  a  provision  v 
of  the  statute  as  follows:  "  The  legislative  power  of  the  city  is  vested 
in  the  common  council  thereof,  and  it  has  authority  to  enact  ordinances, 
not  inconsistent  with  law,  for  the  government  of  the  city  and  the  man-, 
agement  of  its  business,  forjhe  preservation  of  good  order,  peace  ami 
health,  for  the  safety  and  welfare  of  its  inhabitants  and  the  protecti^ 
and  securityoTlKeir  propeily.  .  .  .  (Second  Class  Cities  Law,  sec.  30 ; 
chap.  182,  Laws^of  1898,  sec.  12.) 

1  Statement  of  facts  abridged  and  arguments  omitted.  —  Ed. 


29G 


ROCHESTER   V.   MACAULEY-FIEN   MILLING   CO. 


-^ 


This  court  in  People  ex  rel.  Dunn  v.  Ham,  166  N.  Y.  477,  in  con- 
struing the  section  from  which  we  have  quoted,  said:  "The  evident 
purpose  of  that  section  was  to  confer  upon  the  common  council  entire 
legislative  authority  as  to  matters  relating  to  the  municipal  govern- 
ment, except  as  limited  by  that  statute  and  others  not  inconsistent 
with  its  provisions.  This  is  clearly  indicated  by  the  act  itself,  and  was 
plainly  avowed  by  the  commission  which  reported  it  to  the  legislature. 
(Senate  Documents,  1896,  Vol.  5,  No.  24.)"  (p.  481.) 
~  The  common  council  is  thus  the  judge  as  to  what  ordinances  it  will 
pass  for  the  safety  and  welfare  of  the  inhabitants  of  the  city  and  the 
protection  and  security  of  their  property,  and  unless  an  ordinance 
passed  by  it  is  wholly  arbitrary  and  unreasonable  jtshouldjDe  iipheld._ 
The  necessity  and  advisability  of  the  ordinance  is  for  the  legislative 
power  to  determine.  The  presumption  is  in  favor  of  the  ordinance. 
{Fifth  Ave.  Coach  Co.  v.  City  of  New  York,  194  N.  Y.  19.) 

This  court,  referring  to  the  police  power  in  People  ex  rel.  Wine- 
burgh  Adv.  Co.  V.  Murphy  195  N.  Y.  126,  say:  "The  police  power, 
so  difficult  to  define,  but  so  frequently  invoked,  is  confined  to  such 
reasoHable  restrictions  and  prohibitions  as  are  necessary  to  guard  pub- 
lic health,  morals  and  safety,  and  to  conserve  public  peace,  order  and 
the  general  welfare.  Regulations  and  ordinances  within  such  general 
definition  are  valid.  The  city  may  make  and  enforce  such  regulations 
and  ordinances,  although  they  interfere  with  and  restrict  the  use  of  pri- 
vate property.  Compensation  for  such  interference  with  and  restric- 
tion in  the  use  of  property  is  found  in  the  share  that  the  owner  enjoys 
in  the  common  benefit  secured  to  all."     (p.  131.) 

The  emission  of  smoke  from  a  chimney  when  it  includes  dust,  soot 
and  cinders  to  such  an  extent  that  it  is  rendered  very  dark  or  black 
must  materially  affect  the  purity  of  the  atmosphere  surrounding  the 
place  where  it  is  so  emitted.  The  pervading  substances  in  the  smoke 
necessarily  darken  its  color  in  proportion  with  the  amount  thereof.  As 
soon  as  the  impelling  force  is  removed  such  substances  obey  the  law  of 
gravity  and  fall  upon  the  adjoining  property.  In  a  city  or  closely 
populated  community  where  persons  and  property  cannot  be  removed 
from  the  effects  of  the  disagreeable  contamination  it  not  only  pollutes 
the  air  that  must  be  breathed,  but  it  mars  the  appearance,  destroys 
the  cleanliness,  and  affects  the  value  of  the  property  within  the  circle 
upon  which  such  substances  from  the  smoke  so  fall.  The  extent  of  the 
injury  is  a  matter  to  be  established  by  evidence,  to  include  all  the  facts 
and  circumstances  relating  to  it;  although  doubtless  it  is  a  matter  of 
common  knowledge  of  which  the  courts  may  take  judicial  notice  that 
some  injury  must  result  from  substance-laden  smoke  pervading  tTie~ 
atmosphere  in  which  persons  and  property  necessarily  remain. 

The  Court  of  Appeals  of  the  District  of  Columbia,  referring  to  smoke 
as  a  nuisance,  say:  "Now,  whilst  the  emission  of  the  ordinary  smoke 
from  the  chimneys  of  houses  does  not  amount  to  a  nuisance  per  se,  it 
is  nevertheless  a  matter  of  common  knowledge,  not  to  be  ignored  by 


,]V-Nxrije 


A- 


KOCHESTER   V.   MACAULEY-FIEN   MILLING   CO.  297 

the  courts,  that  the  emission  of  a  volume  of  dense,  black  smoke  from  a 
single  smokestack  or  chimney  of  a  large  furnace,  may,  under  some  cir- 
cumstances, work  physical  discomfort  to  tiie  general  public  coming 
within  its  circle  of  distribution  upon  public  thoroughfares,  and  may 
possibly  also  work  injury  to  public  interests  in  other  respects.  When- 
ever it  may  become  a  special  source  of  legal  injury  to  an  individual  he 
will  have  an  action  of  damages  therefor,  and,  in  cases  of  continuation, 
equity  will  afiford  complete  relief  by  process  of  injunction."  (Moses  v. 
U.  S.,  16  App.  Cas.  D.  C.  428;  50  L.  R.  A.  532.) 

The  courts  of  this  state  have  frequently  exercised  their  restraining 
power  against  persons  so  using  their  property  as  to  unreasonably  inter- 
fere with  the  property  and  personal  rights  of  others.  [McCarty  v. 
Natural  Carbonic  Gas  Co.,  189  N.  Y.  40;  Pritchard  v.  Edison  Elec. 
Ill  Co.,  179  N.  Y.  364  ;  Bbj  v.  Edison  Elec.  III.  Co.,  172  N.  Y.  1 ;  Gar- 
vey  v.  Long  Island  R.  R.  Co.,  159  N.  Y.  323;  Morton  v.  Mayor,  etc., 
qfX.  Y.,  140  N.  Y.  207;  Bohan  v.  Port  Jervis  Gas  Light  Co.,  122 
N.  Y.  18;  Coffsivell  v.  N.  Y.,  N.  H.  &  Hartford  R.  R.  Co.,  103  N.  Y. 
10 ;  Canijibell  v.  Seamayi,  63  N.  Y.  568  ;  Yocum  v.  Hotel  St.  George 
Co.,  18  Abb.  [N.  C]  340;  Beir  v.  Cooke,  37  Hun,  38;  Hutchinsx. 
Smith,  63  Barb.  251.) 

Ordinances  relating  to  the  emission  of  smoke  have  been  enacted  in 
nearly  every  city  and  village.  There  is  a  great  difference  in  the  smoke, 
dirt  and  soot-producing  qualities  of  fuel  and  in  the  furnaces  where 
consumed  and  in  the  manner  of  stoking  the  fires,  and  as  the  careless 
and  unrestrained  use  of  some  fuels  tends  to  produce  and  discharge  into 
the  atmosphere  surrounding  the  places  whei'e  such  fuels  are  so  care- 
lessly used,  dirt  and  soot-laden  smoke  that  is  disagreeable  and  injuri- 
ous, the  production  and  discharge  of  such  smoke  is  a  proper  subject 
for  reasonable  police  regulation.  If  an  ordinance  so  enacted  is  rea- 
sonable, it  should  be  upheld,  and  if  unreasonable,  it  should  be  declared  j  "^ 
inoperative  and  void.                                                                                          *^  ^, 

Jhe  Municipal  Court  by  the  judgment  rendered  in  this  case  has,  in  ''^''^ 
substance,  found  that  the  ordinance  is  reasonable  and  enforceable. 
Such  judgment  was  affirmed  by  the  County  Court  and  it  has  been 
unanimously  affirmed  by  the  Appellate  Division.  As  a  question  of  "  i^-^'-^-jP 
fact  it  is  not  open  for  our  consideration.  It  is  not  unreasonable  upon^  ^(5-c<^"t' 
its  face  or  as  a  matter  of  law.  The  judgment  should  be  affirmed,  with  "  ft^^ 
costs.  c<r->-C''>-'»«^ 

CuLLEN,  Ch.  J.,  Gray,  Haight,  Vann,  Werner  and  Willard  Bart- 
LETT,  JJ.,  concur. 

■^  .,  Judgment  affirmed. 


/ 


\ 


lA^J,    v^ 


298        \  VoV  GODDARD.  ^hL     ^ 

^  Section  lY.  — Power  to  Tax.    -^f^ '  ^nttk^Tv^^ 


GODDARD,  Petitioner.     ^^--Ml^tsL^ 

1835.     16  Pick.  504.  ^-^X-l-^  ^'^'^■^■c^ 

Petition  for  a  certiorari  to  the  Municipal  Court  for  the  City  m*"^ o 
Boston.^  , .  ^^"V^A-, 

Shaw,  C.  J.     No  question  is  made  of  the  facts  in  this  case,  but  it     /^ 
is  conceded,  that  the  petitioner  did  not  clear  the_side  walk  in  front  of    ^^^ 
his  land,  in  the  maniier  required  by~the  by-iaw  of  the  city,  and  he  ^/\ju 

Justifies  this  on  the  ground  that  the  law  itself  is  invalid  and  of  nq^  j t 

binding  force.     For  the  purpose  of  having  this  question  deliberately     ^^^ 
considered,  and  for  the  purpose  of  taking  several  exceptions  to  the 
course  of  proceedings,  the  petitioner  has  prayed  for  a  writ  of  certiorari 
to  the  Municipal  Court. 

Another,  and  perhaps  the  most  important  objection,  is,  that  the 
by-law  is  one  imposing  a  tax  or  duty  upon  the  citizens,  and  it  is  a 
violation  of  the  constitution  in  this,  that  it  is  partial,  and  unequal, 
and  contravenes  that  fundamental  maxim  of  our  social  system,  that  all 
burdens  and  taxes  laid  on  the  people  for  the  public  good  shall  be 
equal. 

But  the  Court  are  all  of  opinion,  that  the  by-law  in  question  is  not 
obnoxious  to  this  objection. 

It  is  not  speaking  strictly,  to  characterize  this  city  ordinance  as  a 

law  levying  a  tax,  the  direct  or  principal  object  of  which  is,  the  raising 

of  revenue.     It  imposes   a  duty  upon  a  large  class  of  persons,  the 

^   n~jj^    performance  of  which  requires  some  labor  and  expense,  nnd  theiefore 

V-^ ■  I  indirectly  operates  as  a  law  creating  a  burden.     But  we  think  it  is 

tjC^^ — *  »|  rather  to  be  regarded  as  a  police  regulation,  requiring  a  duty  to  be 
Zo^         I  performed,   highly  salutory  and    advantageous  to  the  citizen s^^j   a 
"    '         '  populous   and   closely  built  city,   and  which  is  imposed  upon  them 
Keoause  they  are  so  situated  as  that  they  can  most  promptly  and' 
conveniently  perform  it,  and  it  is  laid,  not  upon  a  few,  but  upon  a 
jpumerous  class,  all  those  who  are_so  situated,  and  equally  upon  all' 
who  are  within  the  description  composing  the  class. 

It  is  said  to  be  unequal,  because  it  singles  out  a  particular  class  of 
citizens,  to  wit,  the  owners  and  occupiers  of  real  estate,  and  imposes 
the  duty  exclusively  upon  them. 

If  this  were  an  arbiti'ary  selection  of  a  class  of  citizens,  without 

,     reference  to  their  peculiar  fitness  and  ability  to  perform  the  duty,  tlie 

3^>f~*^   %  objection  would  have  great  weight,   as  for  instance,  if  the  expense  of 

^^-(jvs^*  clearing  the  streets  of  snow  were  imposed  upon  the  mechanics,  or 

merchants,   or   any  other  distinct   class  of  citizens,   between  whose 

1  Statement  of  facts,  arguments,  and  part  of  opinion  omitted. — Ed. 


GODDAP.D. 


299 


convenience  and  accommodation,  and  the  labor  to  be  done,  there  is 
no  natural  relation.  But  auppose  there  is  a  class  of  citizens  who  will 
themselves  commonly  derive  a  benefit  from  the  performance  of  some 
pu blicI^Ty,"  we"  call  see  no  inequality  iu  requiring  tliat  all  those  who 


i\AVs^I 


will  derive  such  benefit,  shall  by  a  general  and  equal  law  be  required 

to  do  it^     .Supposing  a  by-law  should  require  every  inhabitant,  who  ,  . 

keeps  a  cart,  truck  or  other  team,  or  a  coach  or  other  carriage,  to  turn  \  S'**~^  ^^-'^ 


i\ 


out  himself  or  send  a  man,  with  one  or  more  horses,  after  each  heavy 
fall  of  snow,  to  assist  in  levelling  it.  Although  other  citizens  would 
derive  a  benefit,  yet  as  these  derive  some  peculiar  benefit,  accom- 
panied with  the  ability,  I  can  at  present  perceive  no  valid  objection 
to  a  by-law  requiring  it,  on  the  ground  of  inequality.  Supposing  a 
general  regulation,  that  at  certain  seasons  of  the  year,  every  shop- 
keeper should  sprinkle  the  side  walk  in  front  of  his  own  shop,  or 
sweep  it,  inasmuch  as  he  has  a  peculiar  benefit,  and  as  the  duty  is 
equal  upon  all  who  come  witliin  the  description,  it  seems  to  us  to  be 
equal,  in  the  sense  in  which  the  law  requires  all  such  burdens  to 
be  equal.  And  it  appears  to  us  that  the  case  before  us  is  similar. 
Although  the  side  walk  is  part  of  the  public  street,  and  the  public 
have  an  easement  in  it,  yet  the  adjaceiit  occupant  often  is  tlic  owner! 
of  the_fee,  and  geuerallj'  has  some  peculiar  interest  in  it,  and  benefit 
from  it.  distinct  from  that  which  he  enjoj^s  in  common  with  the  rest  of 
fliecojnin  unity.  He  has  this  interest  and  benefit,  often  in  accommo- 
dating his  cellar-door  and  steps,  a  passage  for  fuel,  and  the  passage  to 
and  from  his  own  house  to  the  street.  To  some  purposes  therefore  it  ^ju...^3^vlo^.^'ij 
is  denominated  his  side  walk.     For  his  own  accommodation,  he  would    . 


have  an  interest  in  clearing  the  snow  from  his  own  door.  The  owners 
and  occupiers  of  house-lots  and  other  real  estate,  therefore,  have  an 
interest  in  the  performance  of  this  duty,  peculiar  and  somewhat  distinct 
from  that  of  the  rest  of  the  community. 

Besides,  from  their  situation,  they  have  power  and  ability  to  perform 
this  duty,  with  the  promptness  which  the  benefit  of  the  community 
requires,  and  the  duty  is  divided,  distributed  and  apportioned  upon  so 
large  a  number,  that  it  can  be  done  promptly  and  effectually,  and 
without  imposing  a  very  severe  burden  upon  any  one.  Supposing  a 
by-law  should  require,  what  is  often  done,  in  practice,  that  upon  an  ^      . 

alarm  of  fire  in  the  night,  all  householders,  on  streets  leading  to  andi^^-tx-C^       js^ 
near  the  fire,  should  exhibit  a  light.     This  would  seem  to  be  reason-/     iv'>M*-*v^**' 
able.     Or  that  aHlthe  owners  or  occupiers  of  dwelling  houses,  having).         |  ^  ^  "5^ 
a  well  and  pump,  should  keep  them  in  repair  at  their  own  expense,  to  1  /  ^j  Sjb^s^,^  " 
be  used  in  case  of  fire.     It  would  operate  partidly,  but  it  seems  to  us 
not  unequal,  in  the  sense  in  Avhich  we  are  using  that  term.     The  cit}' 
might  keep  persons  ready  iu  every  street,  to  light  torches  and  flam- 
beaux in  case  of  fire,  and  the  expense  be  paid  from  the  treasury ;  still 
it  appears  to  me,  that  as  householders  would  derive  a  benefit  from  the 
operation  of  this  general  regulation,  as  their  local  situation   puts  it 
peculiarly  within  their  power  and  ability  to  perform  it  without  great 


'v^'-r- 


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4fl>^,Uw 


^V,-.^ . 


IT- 


'^w- 


fVw^ 


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/^^^SlI^  ^^^^-^MTv,  ^   "^^^ 


300  CHICAGO    GENERAL   RAILWAY   COMPANY   V.    CHICAGO. 

expense,  and  as  it  is  equal  in  its  terms,  it  would  not  be  obnoxious  to 
the  charge  of  being  invalid  for  partiality  and  inequality. 

In  all  these  cases  the  answer  to  the  objection  of  partiality  and  in- 
equality is,  that  the  duty  required  is  a  duty  upon  the  person  in  respect 
to  the  property  which  he  holds,  occupies  and  enjoys,  under  the  pro- 
tection and  benefit  of  the  laws,  that  it  operates  upon  each  and  all  in 
their  turns,  as  they  become  owners  or  occupiers  of  such  estates,  and  it 
ceases  to  be  required  of  them,  when  they  cease  to  be  thus  holders  and 
occupiers  of  the  estate,  in  respect  to  which  the  duty  is  required.  In 
this  respect  it  is  like  a  land  tax,  or  house  tax,  it  does  not  bear  upon 
owners  of  personal  property,  and  therefore  does  not  bear  upon  all 
rw^  '  citizens  alilie,  but  is  not  on  that  account  unequal  or  partial,  in  the 

■^    '  ySl  \  sense  contemplated  by  the  Declaration  of  Rights,  requiring  all  taxes 

,  ^  ''^->*       I  and  burdens  to  be  equal  and  impartial. 
^^^^^^^/■Qcy^  '      The  Court  are  all  of  opinion,  that  as  a  by-law,  the  regulation  in 
question  was  a  reasonable  one,  that  it  was  not  repugnant  to  the  con- 
stitution or  laws  of  the  Commonwealth,  and  that  the  conviction  was 
right. 
Ni  ^  ^  '  Petition  dismissed.^ 

CHICAGO   GENERAL   RAILWAY   COMPANY    v.   CHICAGO,  ijj^ 

1898.     176  Z//.  253.  V^  Wa-^  j---.Ul^  ^^  "V 

"Wilkin,  J.     This  is  an  action  of  debt  brought  by  the  city  of  Chicago,  "^     \ 
against  plaintiff  in  error,  to  recover  damages  on  its  bond  in  the  sum  of     ,j^ 
$25,000.     Damages  were  assessed  at  $2250,  and  judgment  rendered 
for  that  amount  and  costs,  from  which  plaintiff  in  error  prosecutes     ^^ 
this  writ.  sA 

The  facts  in  the  case  are  uncontroverted.     In  February,  1892,  the   p 
city  passed  an   ordinance  granting  to  plaintiff  in  error  authority  to   ^^' 
construct,   maintain  and  operate  a  street  railway  on  Twenty-second  fi^tL. 
and  other  streets  in  the  city,  upon  certain  terms  and  conditions,  among 
Q       which  was  the  following :  •     '^  ^ 

f  k,vvV^  '^    "Sec.   8.    Per  mile   tax. — The   rights,   privileges  and   franchises     , 
I   -fjierein  conferred  are  granted  upon  the  further  condition  and  consider-     ' 
^'^  ation  that  on  or  after  December  1,  1895,  the  said  company  or  their  .i. 
v^  '7^yiA'^A>-^egal  assigns,  or  any  person,  firm,  company  or  corporation  in  any  way  '^^ 
claiming  under  or  through  them,  or  operating  the  road  herein  author- 
ized, shall  pay  into  the  city  treasury  of  the  city  of  Chicago,  annually,    F^ 
for  each  and  every  lineal  mile  of  their  track  laid  under  the  provisions  ]j\    . 
of  this  ordinance,   and  a  proportionate  amount  of  any  fraction  of  a     i  ^ 
mile  laid  as  herein  authorized,  the  sum  of  five  hundred  dollars  ($500,)  " 
etc. 


J-  ^ 


M 


^ 


»  See  Doughten  v.  Camden,  72  N.  J.  L.  451,  63  Atl.  170,  11  Am.  St.  Rep.  680. 


v-^*^\: 


CHICAGO   GENERAL   RAILWAY   COMPANY   V.   CHICAGO. 


301 


Section  11  required  the  company  to  give  bond  in  the  sum  of  $2;'5,000,'^><rv— <' 
conditioned  for  the  faithful  observance  and  performance  of  the  condi-    """ 
tions  of  the  ordhiance.     PLaintiff  in  error  accepted  the  ordinance,  and 
in  pursuance  of  its  terms  caused  the  bond  sued  on  to  be  executed.  ^^^..^ 
Four  and  a  half  miles  of  track  were  laid  by  it,  but  it  refused  to  pay 
the  sum  provided  by  section  8  when  due,  and  thereupon  this  suit  was 
brought. 

The  principal  question  co  be  determined  in  the  case  is,  ^Jiether  the 
city  had  the  power  to  impose  the  condition  prescribed  in  section  8  or 
the  ordinance  grantiiig  tHe  right  to  the  defendant  rail  way  coQTpany  to 
occupy  the  street  with  its  tracks. 

Our  constitution  (art.  11,  sec.  4.)  provides  :   "  No  law  shall  be  passed  Ox..  -_ 
by  the  General  Assembly  granting  the  right  to  construct  and  operate^,' 
a  street  railway  within  any  city  .  .  .  without  requiring  the  consent  of^  .    ,7 
the  local  authorities  having  control  of  the  street  or  highway  proposed 
to  be  occupied  by  such  street  railroad."     The  twenty-fourth  clause  of  >4,Kkft.;, 
section  1  of  article  5  of  the  City  and  Village  act  (then  in  force)  gave    '~~^^' 
the  city  power  "  to  permit,  regulate  or  prohibit  the  locating,  construct- 
ing or  laj'ing  a  track  of  any  horse  railroad  in  any  street,  allc}'  or  public 
place ;  but  such  permission  shall  not  be  for  a  longer  time  than  twenty 
years."    (Rev.  Stat,  p.  219.)     Section  3  of  the  Horse  and  Dummy  act 
provides  that  no  company  shall  have  the  right  to  construct  its  road 
along  any  street  or  alley,  etc.,  without  the  consent  of  the  corporate 
authorities  of  such  city,  and  that  "  such  consent  may  be  granted  for 
any  period  not  longer  than  twenty  years,  on  the  petition  of  the  com- 
pany, upon  such  terms  and  conditions,  not  inconsistent  with  the  provi- 
sions of  tni^  act,  as  such  corporate  authorities  or  county  board,  as  the 
case  may  be,  shall  deem  for  the  best  interest  of  the  public."     Rev. 
Stat.,  p.  571. 

It  is  not  denied  that  the  city  had  the  power  to  impose  a  money  con- 
dition as  a  license  fee^  or  to  protect  it  against  liabilities  and  expenses 
occasioned  by  reason  of  the  construction  of  the  railroad  in  its  streets, 
or  for  expenses  and  the  like  of  defendant  in  error,  but  it  is  earnestly 
insisted  that  this  ordinance  shows  an  unlawful  attempt  on  the  part  of 
the  municipality  to  sell  its  license,  and  that  it  is  also  an  unauthorized 
attempt  to  raise  revenue  for  the  purposes  of  municipal  government ; 
also,  that,  because  the  ordinance  contains  other  terms  and  conditions 
for  the  protection  of  the  city  against  loss  or  disbursements,  such  as  al 
license  fee  of  SoO  per  annum  for  each  car  operated,  there  is  no  room 
for  the  presumption  that  the  condition  for  the  payment  of  this  amount  ^-^^""^ 
per  mile  was  with  a  view  to  such  purposes.  We  are  unable  to  agree 
with  counsel  in  these  contentions.  It  was  clearly  within  the  power  of 
the  council,  by  its  ordinance,  to  make  this  additional  condition  if  it  so 
desired,  and  the  courts  cannot  indulge  the  presumption  that  the  act  was 
done  for  ail  Illegal  purpose,  it  being  apparent  that  it  could  be  done 
legaTTyr'  Tt  is  not  claimed  the  condition  is  unreasonable  or  against 
public  policy,  and  therefore  void.     It  is  not  for  this  court  to  review 


f     \ 


302 


CHICAGO   GENERAL   RAILWAY   COMPANY   V.   CHICAGO. 


A  Ir.  ^*' 


the  acts  of  the  city  council  which  are  within  its  discretion  and  within 
the  grant  of  power  to  it.  Feoj^le  v.  Chicago  West  Division  Ry.  Co. 
118  111.  113. 

But  if  it  were  true,  as  contended  by  council,  that  the  purpose  of  the 
mileage  tax  was  to  compensate  the  city  for  granting  the  privilege  to 
the  plaintiff  in  error  to  lay  down  its  tracks  and  operate  its  street  rail- 
I  way,  it  is  still,  in  our  opinion,  a  valid  condition,  and  comes  fully  within 
[the  scope  of  the  power  granted  to  the  city  by  section  3  of  the  Horse 
and' Dummy  o.Q^'supra.  In  City  of  Providence  v.  Union  Railway  Co., 
12  R.  I.  473,  it  is  said:  "The  defendant  corporation  also  contends 
that  it  is  not  liable  because  the  city  had  no  power  to  exact  a  pecuniary 
compensation  for  the  use  of  the  streets.  We  do  not  think  this  defense 
is  tenable.  The  charters  of  the  horse  railroad  companies  contain  a 
provision  that  nothing  in  the  charters  shall  be  construed  to  allow  the 
companies  to  construct,  use  or  continue  their  roads  into,  over  or 
through  any  street  or  highway  of  the  city  unless  with  the  consent  of 
the  city  council  of  said  city,  and  upon  such  terms  and  conditions  and 
under  such  rules  and  regulations  as  said  city  council  may  impose.  The 
defendant  cites  certain  cases  which  hold  that  a  municipal  corporation 
has  no  right,  under  a  simple  authority  to  license,  to  demand  money  for 
the  Hcense  beyond  a  small  fee  for  incidental  expenses.  The  ground  of 
decision  of  those  cases  is  that  the  power  to  license  is  a  mere  police^ 
power,  and  therefore  cannot  be  exercised  with  a  view  to  revenue, 
unless  conferred  in  terms  which  plainly  authorize  it.  But  the  power 
here  conferred  is  not  a  police  power.  Evidently  it  was  conferred,  not 
only  for  the  general  good,  but  also  to  enable  the  city  to  protect  itself 
as  the  body  charged  with  the  maintenance  and  repair  of  the  streets, 
and  it  is  to  be  construed  fairly  in  view  of  its  purpose.  Rails  in  streets 
are  a  serious  aimoyance.  They  divert  travel  to  other  streets,  and  so 
necessitate  an  increase  of  care  and  expense,  not  only  where  they  are 
laid,  but  also  in  such  other  streets.  It  is  therefore  not  unreasonable 
to  require  the  companies  to  pay  something  for  their  privileges.  The 
city,  in  giving  its  assent,  has  required  it,  and  the  companies,  in  accept- 
ing the  assent,  have  agreed  to  comply  with  the  requirements.  We 
think  the  agreement  binds  them."  The  following  cases,  under  statutes 
not  materially  different  from  ours,  are  to  the  same  effect :  City  of  Alle- 
gheny v.  Millroh,  159  Pa.  St.  411 ;  Federal  Street  Railway  Co.  v.  Alle- 
gheny, 14  Pittsb.  L.  J.  (N.  S.)  259 ;  Street  Railway  Co.  v.  Covington, 
9  Bush,  127. 

Booth,  in  his  work  on  Street  Railways,  (sec.  284,)  deduces  from  the 
authorities  the  conclusion  that  the  municipality  has  a  right  to  exact  a 
money  consideration  for  its  consent  to  the  occupancy  of  its  streets,  and 
says  :  "  The  right  to  exact  compensation  in  money,  otherwise  called  a 
bonus,  is  justified  on  the  ground  that  the  right  to  use  a  street  already 
graded,  as  a  road-bed,  is  a  valuable  privilege,  and  because  the  occupa- 
tion of  the  streets  by  cars  interferes  to  some  extent  with  their  use  by 
other  travelers.     Where  the  enjoyment  of  the  franchise  depends  upon 


^<\ 


-MV-'-f=^ 


y   ^i 


CHICAGO    GENERAL   RAILWAY   COMPANY    V.   CHICAGO. 


303 


the  consent  of  the  local  authorities,  their  right  to  impose  conditions 
authorizes  them  to  exact  the  payment  of  a  bonus."  Judge  Elliott,  iu 
his  recent  and  able  work  on  Railroads,  (sec.  1081,)  lays  down  sub- 
stantially the  same  doctrine. 

It  is  said  the  public,  for  the  best  interests  of  which  the  city  council 
must  act,  is  not  the  public  within  the  limits  of  the  city,  but  that  by  the 
term  "  public  "  is  meant  "  the  body  of  the  people  at  large;  the  people 
of  the  neighborhood;  the  community  at  large,  without  reference  to  geo- 
graphical limits,"  —  citing  Baker  v.  Johnson,  21  Mich.  319.  We  do  not 
deem  it_important  to  here  determine  the  meaning  of  the  word  "  pnbllcT'' 
as_useiJiy;.JtlieJLegislature.  Certainly  there  is  nothing  shc^wu  iu  this 
record  to  justify  the  presuiiii>tion  that  the  city  council  used  the  word  in 
a  sense  other  than  that  placed  upon  it  by  the  legislature. 

It  is  again  insisted  that  the  condition  embodied  in  section  8  of  the 
ordinance  is  violative  of  the  fourteenth  amendment  to  tlie  constitution 
of  the  United  States,  of  section  2  of  the  bill  of  rights  of  the  constitu- 
tion of  this  State,  and  of  section  22  of  article  4  of  the  latter  constitu- 
tion. The  position  is,  that  each  of  these  are  violated  because  the 
railway  company  is,  by  the  condition,  denied  the  equal  protection  of 
the  laws  of  its  property  without  due  process  of  law ;  that  a  general 
law  may  be  made,  applicable  to  all  street  railways  in  the  city,  but  no 
special  ordinance  can  be  enacted;  and  it  is  insisted  that  because  other 
ordinances  have  been  adopted  by  the  city  granting  privileges  to  other 
railway  companies  to  occupy  the  streets  without  exacting  this  condition, 
the  latter  provision  has  been  violated.  We  think,  with  counsel  for  the 
cit}',  that  the  statute  having  given  the  municipality  power  to  grant  or 
withhold  its  consent  as  "it  shall  deem  for  the  best  interest  of  the 
public,"  —  the  power  being  discretionary,  —  it  is  manifestly  not  to  be 
exercised  by  a  general  ordinance  applicable  alike  to  all  cases,  but  each 
case  must  be  acted  upon  with  reference  to  its  peculiar  conditions  and 
circumstances.  If,  in  the  exercise  of  its  sound  discretion,  the  city 
council  shall  determine  that  the  best  interests  of  the  public  do  not 
require  the  imposition  of  any  conditions  whatever,  it  may  grant  its 
license  without  qualification  ;  but  if,  on  the  other  hand,  the  public 
interest  requires  that  the  occupancy  of  particular  streets,  under  peculiar 
conditions,  demands  that  certain  exactions  shall  be  made  of  the  com- 
pany for  the  privilege  conferred,  then  the  city  council  has  a  right  to 
so  provide,  and  no  constitutional  right  or  privilege  is  interfered  with. 
There  is  no  general  law  of  the  State  of  Illinois,  nor  is  there  an  ordi- 
nance of  the  city  of  Chicago,  requiring  all  street  railway  companies  to 
pay  a  mileage  tax,  but,  as  we  have  before  said,  discretionary  power  is 
conferred  by  the  legislature  upon  the  city  council  to  impose  such  a 
condition  upon  giving  its  consent  to  any  particular  company  to  occupy 
its  streets. 

We  are  also  of  the  opinion  that  even  though  it  might  be  held  that 
the  condition  upon  which  the  permit  or  license  was  granted  to  the  de- 
fendant railway  company  was  ultra  vires,  the  city  not  having  the  power 


304  CHICAGO   V.    UNION   TRACTION    CO. 

to  impose  it,  nevertheless,  the  ordinance  having  been  accepted  by  the 
company  with  the  condition  attached,  agreeing  thereby  to  perform  it, 
it  became  a  valid  contract  between  it  and  the  city,  the  validity  of  which  * 
the  defendant  is  now  estopped  to  deny.  The  act  of  the  city  in  imposing 
the  condition  cannot  be  treated  as  against  public  policy  or  prohibited 
by  statute,  and  void,  and  therefore,  having  accepted  the  contract  in  its 
entirety  and  enjoyed  the  benefits  for  which  it  agreed  to  pay  the  amount 
prescribed,  it  cannot  now  repudiate  that  contract.  Kadisit  v.  Building 
xiss.^  151  111.  531 ;  Cook  County  v.  City  of  Chicago,  158  id.  524  ;  City 
of  Fulton  V.  Northern  Illinois  College,  id.  333. 

It  is  well  settled  in  this  State,  that  while  the  granting  of  authority 
to  occupy  the  public  streets  of  a  city  for  other  than  the  ordinary  pur- 
poses of  a  street  is,  in  the  first  instauce,  a  mere  license,  still,  when 
that  license  is  granted  upon  conditions,  and  the  licensee  has  accepted 
the  privilege  and  performed  tlie  conditions,  it  becomes  a  contract 
between  the  parties.  Here  it  must  be  admitted  that  the  defendant 
could  only  occupy  the  streets  of  the  city  with  its  tracks  by  the  consent 
of  the  municipal  authorities.  That  consent  could  be  given  or  withheld, 
as  these  authorities  deemed  proper;  and  upon  such  conditions  as  they 
considered  for  the  best  interests  of  the  public  they  granted  the  privi- 
lege and  named  the  conditions.  The  defendant  accepted,  without 
qualification.  It  has  availed  itself  of  the  benefits  of  the  contract  and 
now  seeks  to  repudiate  the  conditions.  "VYe  are  unable  to  see  upon 
what  principle,  under  the  law  of  contracts,  it  can  be  allowed  to  do  so. 
We  think,  however,  that  the  liability  of  the  defendant  upon  its  bond 
may  be  properly  placed  upon  the  broad  ground  that  the  city  council 
was  vested  with  full  power  and  authority  to  impose  the  condition  and 
require  the  bond  for  its  faithful  performance. 

The  judgment  of  the  circuit  court  will  be  afl3rmed. 

J;  rr^  Judgment  affirmed. 


CHICAGO  V.  UNION   TRACTION   CO.     -t-*-^^^  V"""^^ 

1902.     199  ///.  259.  ^    ^   ^Hf-^^ 

BoGGS,  J.^  The  city  of  Chicago  instituted  an  action  before  a  justice 
of  the  peace  against  the  defendant  in  error  company  to  recover  the 
fines  provided  by  section  1717  of  the  revised  code  of  ordinances  of 
said  city  for  the  alleged  violation  of  the  provisions  of  section  1716  of 
the  code.  The  traction  company  was  adjudged  guilty  by  the  justice 
of  the  peace  and  a  fine  of  $100  was  assessed  against  it.  In  the  crimi- 
nal court  of  Cook  county,  to  which  the  traction  company  brought  the 
cause  by  an  appeal,  judgment  was  entered  finding  the  traction  com- 
pany not  guilty.  The  city  has  sued  out  this  writ  of  error  to  bring  the 
record  into  this  court  for  examination. 

1  Arguments  omitted. — Ed. 


CHICAGO   V.   UNION   TRACTION   CO.  305 

The  ordinances  upon  which  the  prosecution  is  based  are  as  follows :   ^rv-A-'-v*^ 

"  171G.  The  several  street  railway  companies  at  any  time  operating 
railroad  tracks  on  and  along  the  surface  of  any  of  the  streets,  avenues 
or  alleys  of  the  city  of  Chicago  are  hereby,  respectively,  required  to 
remove  all  dirt,  snow  and  other  accumulations  from  so  much  of  the 
surface  of  each  street,  avenue  or  alley  now  or  hereafter  containing  any  '_  ^^ 
of  their  railway  tracks,  as  lies  between  the  two  outermost  rails  of  such 
tracks,  and  also  frorn^  such  additional  surface,  in  width,  as  may  be 
prescribed  in  any  ordinance  relating  to  or  affecting  any  such  street, 
aveiiue  or  alley,  and  shall,  respectively,  clean  such  portions  of  said 
street,  avenue  or  alley  and  remove  entirely  from  and  out  of  such  street,  ^^■^,^J^J,  (^  .^.^jm 
avenue  or  alley  all  such  dirt,  snow  and  accumulations  at  least  once  in 
each  week,  and  as  much  of  tener  as  the  commissioner  of  public  works  o^ 
shall,  in  writing,  direct ;  such  dii-t,  snow  and  accumulations  to  be  re- 
moved and  disposed  of  in  accordance  with  the  ordinances  of  the  city 
in  relation  to  the  removal  of  street  cleanings,  and  subject  to  the  rules 
and  regulations  of  the  department  of  public  works  in  that  behalf. 

"  1717.  Any  street  railway  company  operating  a  street  railway  upon 
or  along  the  surface  of  any  street,  avenue  or  alley  in  the  city  of  Chicago 
which  shall  refuse  or  neglect  to  clean  any  part  of  a  street,  avenue  or 
alley,  as  required  by  the  last  preceding  section  hereof,  shall,  upon  con- 
viction thereof,  be  fined  in  a  sum  not  less  than  $50  nor  more  than  $200 
for  each  and  every  case  of  such  refusal  or  neglect." 

The  alleged  violation  of  the  ordinance  consisted  in  the  refusal  of 
the  traction  company  to  remove  the  dirt  and  other  accumulations  lying 
on  the  surface  of  the  street  between  the  two  outermost  rails  of  the^    *  , 

track  of  its  railway  in  Kinzie  street.     That   the  defendant  in  error  "^"'''■'^^'^ " 
company  so  refused  and  failed  to  obey  the  ordinance  was  conceded.      C"^-^*-^''^     « 
The  judgment  of  acquittal  proceeded  upon  the  view  urged  by  the  ^ 

traction  company  that  the  ordinances  were  void. 

The  defendant  in  error  company  is  a  corporation  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the  State  of  Illinois,  and 
is  engaged  in  the  occupation  and  business  of  carrying  passengers  for 
hire  in  street  cars  propelled  by  electricity,  and  otherwise,  in  the  city 
of  Chicago.  Its  tracks  were  laid  in  Kinzie  street  by  virtue  of  an  ordi- 
nance adopted  by  the  city  council  of  the  city  on  the  14th  day  of  March, 
1887,  authorizing  the  North  Chicago  Street  Railway  Company,  its 
successors  and  assigns,  to  construct  and  maintain  a  double  track  street 
railway  in  said  Kinzie  street  and  operate  the  same  by  electi-icity  con- 
veyed by  overhead  wires.  The  defendant  in  error  company  is  the  suc- 
cessor of  the  said  North  Chicago  Street  Railway  Company.  It  has 
constructed  and  maintains  a  double  track  railway  on  Kinzie  street,  in 
the  city  of  Chicago,  from  ^Market  to  State  street,  and  operates  its  street 
cars  thereon  by  electric  power. 

It  was  stipulated  that  ever  since  the  first  day  of  July,  1899,  the  said 
defendant,  the  Chicago  Union  Traction  Company,  has  had  possession 
and  control  of  said  street  car  tracks  on  Kinzie  street,  and  has  run 


306  CHICAGO   V.  UNION   TRACTION   CO. 

thereon  street  cars  for  the  conveyance  of  passengers,  operated  by  elec- 
tric power  only,  by  means  of  an  overhead  wire,  and  that  during  the 
week  beginning  Sunday,  August  6, 1899,  and  ending  Saturday,  August 
12,  1899,  the  said  defendant  did  not  remove,  and  refused,  on  demand, 
to  remove,  from  the  said  street  car  tracks  on  Kinzie  street  the  dirt 
and  other  accumulations  lying  on  the  surface  of  said  street  between 
the  two  outermost  rails  of  said  tracks,  contrary  to  the  form  of  said 
\ordinance  of  April  8,  1897 ;  that  said  Kinzie  street  is  a  public  street  in 
Ithe  city  of  Chicago,  the  fee  title  to  the  soil  of  which  street  is  in  the 
said  city  of  Chicago  for  the  use  of  the  public  as  a  street. 

The  sole  question  presented  is,  whether  the  city  possessed  power  to^ 
adopt  and  enforce  the  ordinance.     The  position  of  counsel  for  the  de- 
fendant in  error  company  is  that  the  ordinance  is  void,  and  that  con- 
tention met  the  view  of  the  criminal  court. 

There  was  testimony  to  the  effect  that  the  presence  of  the  rails  of  a 
street  railway  track  upon  a  street  causes  the  dirt  to  accumulate  in  the 
portion  of  the  street  between  the  rails.  The  tendency  is  for  dirt  to 
gravitate  towards  the  sides  of  the  street  when  there  are  no  rails  to  pre- 
I^  vent  it ;  that  this  tendency  of  dirt  to  gravitate  toward  the  sides  of  the 
'*'  street  is  aided  by  the  elements,  and  that  little  brooming  is  required  to 
keep  the  center  of  streets  clean  if  there  are  no  rails  upon  them,  but 
rails  retain  the  dirt  in  the  center  of  the  street ;  that  the  presence  of  the 
tracks  in  Kinzie  street  added  to  the  difficulty  in  cleaning  the  portion 
of  the  street  outside  the  rails ;  that  it  took  longer  to  clean  an  entire 
street  with  rails  than  it  took  to  clean  a  street  where  their  were  none, 
—  three  times  as  long  on  the  portion  of  Kinzie  street  in  question  ;  that 
Kinzie  street  was  paved  between  the  rails  with  granite  and  outside 
with  cedar  blocks,  and  has  a  flat  crown  between  the  rails  and  sloped 
from  the  outside  rails  to  the  gutter ;  that  the  dirt  came  from  horse 
droppings,  from  excavation  wagons,  coal  wagons  and  ordinary  wear 
and  tear;  that  street  accumulations  have  an  effect  upon  the  general 
health,  through  dust,  in  two  ways :  one  through  the  presence  of  irritat- 
ing particles,  which  are  injurious  in  this,  as  being  irritants  to  the 
respiratory  passages  and  the  eyes,  and  also  to  the  presence  of  patho- 
genic bacteria  which  are  in  and  upon  the  particles  of  dust  which  are  in 
the  street.     As  to  these  points  there  was  no  countervailing  proof. 

It  appeared  from  this  testimony  the  health  and  comfort  of  the  peo- 
ple requii-ed  the  dust  and  other  accumulations  should  be  removed  from 
that  portion  of  Kinzie  street  described  in  the  ordinance.  There  is,  it 
is  conceded,  a  general  police  power  possessed  by  the  city  by  which 
the  traction  company  and  all  persons,  natural  or  artificial,  may  be 
subjected  to  such  reasonable  restrictions  and  regulations  as  are  found 
to  be  proper  and  requisite  to  secure  the  health,  comfort  and  conven- 
ience of  the  people.  The  ordinance,  it  is  urged  by  counsel  for  the  city, 
should  be  sustained  as  a  legitimate  exercise  of  the  police  power.  It  is 
insisted  by  the  traction  company  it  is  the  duty  of  the  city  to  keep  the 
streets  of  the  city  clean  and  in  good  repair;  that  the  city  has  power  to 


CHICAGO   V.  UNION   TEACTION   CO. 


307 


raise  funds  for  that  purpose  by  general  taxation,  that  the  public 
interest  is  concerned  in  the  matter  of  cleaning  and  repairing  the 
streets,  and  that  the  execution  of  the  power  to  raise  the  necessary  funds 
to  clean  and  repair  the  streets  by  general  taxation  is  a  duty  devolving 
upon  the  city,  and  that  it  cannot  lawfully  lay  the  burden  of  the  work 
of  cleaning  and  repairing  the  portion  of  Kinzie  street  in  question  on 
the  traction  company,  as  is  proposed  to  be  done  by  this  ordinance ; 
that  the  ordinance  is  void  for  the  reason  it  casts  a  public  burden  upon 
the  traction  company  and  discriminates  against  the  traction  company, 
and  is  a  perversion  of  the  police  power. 

It  is  clear  the  city  could  not,  by  virtue  of  the  police  power  or  other- 
wise, require  the  defendant  in  error  company  to  clean  and  repair 
the  street  if  the  real  purpose  is  merely  to  shift  the  public  burden  from 
Ttself  to  the  company.  In  Gridley  v.  City  of  Bloomington,  88  111.  554, 
we  held  invalid  an  ordinance  which  imposed  a  fine  upon  any  one  who 
should  permit  snow  to  remain  on  the  sidewalk  abutting  premises 
occupied  or  owned  by  him,  longer  than  a  period  of  six  hours  after  it 
ceased  to  fall,  or  if  the  cessation  is  in  the  night  time,  then  longer  than 
•six  hours  after  sunrise  on  the  next  morning,  for  the  reason,  as  there 
said,  "  the  sidewalk,  as  was  declared  in  the  case  cited,  is  as  much  a  public 
highway,  free  to  the  use  of  all,  as  the  street  itself,  and,  upon  principle, 
it  follows  the  citizen  cannot  be  laid  under  obligations,  under  our  laws, 
to  keep  it  free  from  obstructions  in  front  of  his  property  at  his  own 
expense  any  more  than  the  street  itself,  either  by  the  exercise  of  the 
police  power,  or  by  fines  and  penalties  imposed  by  ordinance,  or  by 
direct  legislative  action."  In  City  of  Chicago  v.  O'Brien^  111  111.  532, 
we  held  the  city  had  not  the  constitutional  power  to  require  the  owner 
or  occupant  of  premises  to  keep  the  sidewalk  and  gutters  in  front 
thereof  free  from  snow  and  ice,  or  to  sprinkle  the  same  wilh  ashes 
or  sand  where  the  snow  and  ice  cannot  be  removed  without  injury  to  the 
pavement,  and  inflict  a  fine  on  him  for  a  neglect  or  failure  to  do  so, 
and  declared  the  principle  that  "  a  purely  public  burden  cannot  be 
laid  upon  a  private  individual,  except  as  authorized  in  cases  to  exer- 
cise the  right  of  eminent  domain,  or  by  virtue  of  proper  proceedings  to 
enforce  special  assessments  or  special  taxation." 

The  doctrine  of  these  cases  is  unquestionably  sound,  but  we  do  not 
assent  to  the  view  pressed  upon  us  by  counsel  for  the  defendant  in 
error  company  that  they  are  decisive  of  the  validity  of  the  ordinance 
here  under  consideration.  The  defendant  in^rror  company  does  not 
occupy  the  position  of  the  owner  of  property  abutting  upon  a  street. 
The  owner  of  property  abutting  on  a  street  has  no  interest  in  the 
street  of  the  city,  as  a  street,  other  than  that  possessed  by  every 
other  citizen.  He  may  be  required,  by  way  of  special  assessments  or 
special  taxation  laid  in  pursuance  of  law,  to  make  special  contributions 
to  defray  the  cost  of  constructing  a  sidewalk  or  improving  the  street, 
but  this  is  upon  the  theory  the  value  of  his  property  is  enhanced 
thereby.     The  burden,  however,  of  keeping  the  sidewalk  or  street  clear 


o  <  o-  ^■' —  i 


ij-Ct^ 


308  CHICAGO  V.    UNION  TKACTION  CO. 

of  snow,  ice  and  other  accumulations  is  a  public  burden,  and  no  obli- 
gation is  imposed  upon  the  lot  owner  to  perform  that  which  it  is  the 
duty  of  the  municipality,  as  the  representative  of  the  public,  to  per- 
form. The  lot  owner  has  no  special  right,  benefit  or  interest  in  the 
street  in  front  of  his  premises.  The  defendant  in  error  company  has^ 
however,  been  granted  a  special  privilege  to  occupy  tlie  street  with  its 
rails,  girders,  poles  or  posts  and  wires,  etc.,  and  to  operate  ils  cars" 
along  its  tracks  so  laid  in  the  street.  Horsemen  and  drivers  of 
vehicles  must  yield  the  right  of  passage  to  its  cars  along  and  upon  its 
tracks  in  the  streets,  as  we  have  explained  in  North  Chicago  Electric 
Railv:ay  Co.  v.  Peuser,  190  111.  G7.  It  has  acquired  privileges  in  the 
street  which  other  persons,  natural  or  artificial,  do  not  possess.  It 
actually  occupies  a  portion  of  the  street  in  a  manner  which  would  not 
be  permitted  without  the  aid  of  an  ordinance.  It  has  a  guajified  right, 
of  occupancy,  and  to  that  extent  a  property  interest,  in  a  portion  of 
the  street,  and  is  authorized  to  transact  its  business  for  its  own  sain 
on  the  public  street.  It  sustained  a  relation  to  the  street  and  to  the 
city  entirely  distinct  from  that  of  an  abutting  proi:)erty  owner,  and  it 
does  not  follow  that  the  defendant  in  error  company  cannot  be  re- 
quired to  clean  that  portion  of  the  street  occupied  by  its  trades  simply 
because  an  abutting  property  owner  cannot  be  required  to  clean  that 
portion  of  the  sidewalk  or  street  which  is  in  front  of  his  premises. 
The  permission  or  license  given  the  defendant  in  error  company  to  use 
the  street  did  not  operate  to  deprive  the  city  of  the  general  power  of 
control  over  the  street  delegated  to  the  municipality  by  the  General 
Assembly  of  the  State.  The  license  and  privilege  enjoyed  by  the  de- 
fendant in  error  company  are  in  subordination  to  the  general  power  so 
residing  in  the  city.  The  traction  company,  in  virtue  of  the  special 
privileges  granted,  has  a  qualified  right  of  occupancy  of  that  portion 
of  the  street  between  the  outermost  rails  of  its  two  lines  of  track  which 
are  laid  in  the  street.  The  evidence  shows  that  portion  of  the  pave- 
ment of  the  street,  for  the  convenience  of  the  company,  has  been  con- 
structed differently  by  the  company  from  what  it  otherwise  would 
have  been  laid ;  that  on  that  portion  of  the  street  covered  by  the 
tracks  of  the  street  railway  the  pavement  has  been  laid  flat,  thus  giv- 
ing the  surface  of  the  street  a  flat  crown  of  the  width  of  sixteen  feet, 
when,  but  for  the  tracks  of  the  railroad,  the  pavement  would  have  been 
laid  with  a  slope  from  the  center  of  the  street  to  the  gutter  upon  either 
side,  and  that  the  rails  of  the  tracks  prevent  the  filth  of  the  street  from 
reaching  the  gutters.  It  further  appeared  the  tracks  of  the  railway 
interfere  with  the  work  of  cleaning  both  that  portion  of  the  street 
within  the  tracks  and  also  that  portion  of  the  street  between  the  outer- 
most rails  of  the  tracks  and  the  gutters;  that  as  much  time  was  re- 
quired to  clean  the  portion  of  the  street  outside  the  tracks  as  would  be 
required  to  clean  the  entire  surface  of  the  street  if  the  railroad  tracks 
were  not  there.  All  of  these  things  must  be  considered  in  determining 
as  to  the  reasonableness,  necessity  and  justice  of  the  requirements  of 


CHICAGO   V.   UNION   TRACTION    CO.  309 

the  ordinance.  True,  the  dirt  and  accumulations  to  be  removed  (so  far 
as  the  evidence  bears  upon  that  question)  were  not  brought  by  the 
traction  company  on  that  portion  of  the  street  occupied  by  its  tracks, 
but  it  does  appear  its  rails  and  road-bed,  and  the  manner  in  which  the 
crown  of  the  street  has  been  constructed  for  its  convenience,  tended 
to  retain  the  dirt  and  filth  there  and  to  render  it  more  difficult  and 
expensive  to  remove  the  same,  and  also  to  make  it  more  expensive  to 
clean  the  street  outside  the  tracks.  The  public  health  and  comfort 
required  the  street  should  be  cleansed  of  the  dirt  and  filth  which  "  ac- 
cumulated "  on  the  pavement  between  the  tracks  of  the  railway  and 
about  the  rails  of  such  tracks,  and  the  exercise  of  the  police  power  to 
that  end  devolved  upon  the  city  as  a  duty. 

It^es  not  seem  unreasonable  that  the  city  should  require  the  trac- 
tion company lo"  clean  and"  render  healthy  that  portion  of  the  street 
occupied  by  the  tracks  of  the  road,  under  the  circumstances  of  the 
_oase.  In  order  to  secure  the  public  health  and  comfort  the  property  of 
individuals  and  corporations  may  alike  be  subjected  to  reasonable 
restrictions  and  burdens.  It  does  not  appear  unreasonable  that  the 
traction  company,  having,  in  the  exercise  of  the  special  privilege 
enjoyed  by  it  of  using  the  street,  contributed  to  the  unsanitary  con- 
dition which  injuriously  affects  the  public  health  and  comfort,  should 
be  required  to  aid  in  removing  such  conditions.  The  privilege  enjoyed 
by  the  defendant  in  error  company  to  niaintain  its  railway  in  the  street 
and  operate  its  cars  thereon  is  to  be  exercised  in  the  interest  of  the 
public,  —  it  was  to  serve  the  public  that  the  privilege  was  granted  to 
it.  Its  business  and  property  are  impressed  or  affected  with  a  public 
use.  It  may  therefore  be  subjected  to  municipal  regulations  of  a 
greater  scope,  in  the  interest  of  the  public  at  large,  than  that  of  a  rail- 
road company  exercising  its  franchises  on  its  own  road-bed.  Cape 
Mcui  Street  Railway  Co.  v.  Cajje  May,  59  N.  J.  L.  396;  Charlotte,  etc.. 
Railroad  Co.  v.  Gibhs,  142  U.  S.  386.  Ordinances  have  been  upheld 
which  required  street  railway  companies  to  keep  the  street  between  the 
rails  of  their  tracks  in  repair,  and  which  regulated  the  common  use  of 
the  streets  for  street  railway  and  ordinary  travel,  North  Hudson  Rail- 
road Co.  V.  Hoboken,  12  Vroom,  71 ;  to  make  the  railroad  tracks  of 
street  railway  companies  located  in  a  street  to  conform  to  the  require- 
ments of  the  ordinance,  so  as  to  enable  wagons,  carriages  and  other 
vehicles  to  pass  over  tracks  without  inconvenience  or  danger,  North 
Chicago  City  Railiuay  Co.  v.  Totvn  of  Lake  View,  105  III.  183;  to 
remove  snow  from  the  street,  Broadivay  Railroad  Co.  v.  Mayor,  49  -, 
Hun,  129  ;  prohibiting  the  use  of  sand,  saltpeter  or  salt  on  the  tracks  t 
of  a  street  railway.  Dry  Dock  Railroad  Co.  v.  Mayor,  47  Hun,  221  ; 
Traction  Co.  v.  Elizabeth,  58  N.  J.  L.  520  ;  and  ordinances  to  compel 
cleaning  and  sprinkling  of  the  tracks  of  street  railway's  have  been  not 
infrequently  upheld  as  valid.  Booth  on  Street  Railways,  sec.  230; 
23  Am.  &  Eng.  Ency.  of  Law,  —  Isted.  —  p.  999  ;  City,  etc..  Railroad 
Co.  v.  Savannah,  11  Ga.  731.     The  ordinance  here  under  considera- 


•\ks- 


310  '  CHICAGO   V.    UNION   TRACTION   CO. 

tion  is  general  in  its  operation,  affecting  alike  all  corporations  and  in- 
dividuals who  are  similarly  situated  and  bear  the  same  relation  to  the 
streets  of  the  city.  The  rule  of  equality  and  uniformity  is  not  invaded, 
nor  does  the  ordinance  unjustly  discriminate  against  any  individual  or 
corporation. 

It  is  urged  the  ordinance  granting  the  license  to  lay  the  tracks 
and  operate  the  street  railway  in  Kinzie  street  constitutes  a  contract 
between  the  city  and  the  traction  company,  the  obligations  whereof 
cannot  be  impaired  by  any  ordinance  subsequently  enacted,  and  we  are 
invited  to  consider  whether  the  provisions  of  the  ordinance  so  granting 
permission  to  occupy  the  street  with  the  tracks  of  its  railwa}'^,  and 
operate  its  cars  on  such  tracks,  do  not  relieve  the  defendant  in  error 
company  of  the  burden  sought  to  be  laid  upon  it  by  the  ordinance  here 
endeavored  to  be  enforced.  On  the  other  hand,  counsel  for  the  city 
insist  the  latter  ordinance  requires  the  company  to  do  no  more  than  it 
is  bound  to  do  by  a  fair  and  reasonable  construction  of  the  terms  and 
provisions  of  the  former  ordinance  granting  authority  to  the  defendant 
in  error  company  to  occupy  the  street  with  its  tracks. 
I  I"  The  cityj_as  the  representative  of  the  State,  is  invested  with  power 
''^**'^  to  enact  and  enforce  all  ordinances  necessary  to  prescribe  regulations 
and  restrictions  needful  for  the  preservation  of  the  health,  safety  and 
.A>-JU'v  comfort  of  the  people.  The  exercise  of  this  power  affects  the  public 
and  becomes  a  duty,  the  performance  whereof  is  obligatory  on  the  city. 
The  city  could  not,  by  the  terms  and  conditions  of  the  former  ordi- 
nance^ deprive  itself  of  this  power  or  relieve  itself  of  this  duty,  nor 
could  the  defendant  in  error  company,  by  any  contractual  terms  of  au 
ordinance,  exempt  itself  from  the  proper  and  reasonable  control  of  the 
municipal  authorities  in  matters  affecting  the  health,  safety  or  comfort 
of  the  people.  "  No  contract  can  be  made  which  assumes  to  surrender 
or  alienate  a  strictly  governmental  power  which  is  required  to  continue 
in  existence  for  the  welfare  of  the  public.  This  is  especially  true  of 
the  police  power,  for  it  is  incapable  of  alienation.  It  cannot  be 
doubted  that  a  company  which  secures  the  right  to  use  the  streets  of  a 
municipal  corporation  takes  it  subject  to  the  police  power  resident  in 
the  State  as  an  alienable  attribute  of  sovereignty."  Elliott  on  Roads 
and  Streets,  p.  801. 

We  are  of  the  opinion  the  ordinance  under  consideration  is  a  reason- 
able and  valid  exercise  of  the  police  power,  and  that  it  should  be 
obeyed  and  enforced  accordingly.  The  judgment  of  the  criminal  court 
is  therefore  reversed  and  the  cause  is  remanded  to  that  court  for 
further  proceedings  in  conformity  to  this  opinion. 

(  ^  '  1         Reversed  and  remanded. 


V  "     ^y^.  (^  ^,9^  ^^^"^  SMITH  V.   HUNT.  311 

^  ',  V^  FOKT  SMITH  v.  HUNT. 

yS^''^  1904.     72  ^rA-.  656. 

Battle,  J.^  This  appeal  grows  out  of  the  prosecution  of  R.  G.  Hunt, 
general  manager  of  the  Fort  Smith  and  Van  Buren  Light  &  Transit 
Company,  charged  with  the  violation  of  an  ordinance  of  the  city  of  Fort 
Smith.^ 

•  *.  •••««. 

Appellee  contends  that  the  25  cents  demanded  by  the  city  of  Fort 
Smith  for  each  pole,  under  section  one  of  ordinance  No.  525,  is  "  an  ex- 
plicit demand  of  rental  for  the  use  of  the  streets."  The  ordinance 
requires  every  person  and  corporation,  who  shall  erect,  maintain  and 
use  any  pole  or  poles  on  any  of  the  public  streets  and  alleys  of  Fort 
Smith  to  pay  to  the  city,  as  a  license  therefor,  a  sum  equal  to  25  cents 
for  each  of  such  poles.  The  sum  is  required  to  be  paid  as  a  license. 
As  used  in  the  ordinance,  the  word  "  license  "  means  the  sum  paid  for 
permission  to  erect  or  maintain  poles  in  the  streets  and  alleys  of  the 
city,  for  the  purpose  of  defraying  the  expenses  of  regulating  and  con- 
trolling the  use  of  the  same,  under  the  police  power  of  the  city.  This 
is  necessary  for  the  protection  of  the  public  against  the  electricity  with 
■which  the  wires  on  the  poles  may  be  charged,  against  the  falling  of  the 
■wires  and  poles,  and  the  obstruction  of  the  public  highway,  and  for 
other  purposes.     This  is  a  duty  the  city  owes  to  the  citizen. 

The  rules  and  regulations  for  the  government  of  those  erecting  and 
maintaining  poles  in  Fort  Smith,  and  tlie  duties  of  the  city  engineer  in 
respect  thereto,  are  prescribed,  in  part,  if  not  wholly,  by  ordinance 
No.  300.  But  this  does  not  exhaust  the  police  power  of  the  city  in  re- 
spect to  such  poles.  The  city  council  may  hereafter  prescribe  other 
rules  and  regulations  for  the  same  object.  For  the  purpose  of  paying 
the  expenses  of  enforcing  such  rules  and  regulations  already  in  force, 
a  license  fee  may  be  demanded  and  collected. 

Hot  Springs  Electric  Light  Co.  v.  Hot  Springs,  70  Ark.  300,  is  unlike  * 
this  case.     In  that  case  this  court  merely  held  that  the  city  of  Hot 
Springs  had  no  right  to  demand  and  collect  a  rental  charge  for  the  use 
of  the  ground  occupied  by  the  poles  of  the  light  company. 

The  following  words,  used  in  Fayettev'dlex.  Carter,  52  Ark.  301,  302, 
are  applicable  in  this  case:  "The  power  to  license  and  regulate, 
granted  by  the  statute,  was  conferred  solely  for  police  purposes ;  and 
municipal  corporations  have  no  right  to  use  it  as  a  means  of  incieasino- 
Iheir  revenues.  They  can  require  a  reasonable  fee  to  be  paid  for  a 
license.     The  amoiTnt^they  Tiave  a  right  to  demand  for  such  fee  de- 

*  Arguments  and  part  of  opinion  omitted.  —  En. 

2  On  March  19,  1900,  the  said  city  enacted  ordinance  No.  525,  by  which  it  re- 
quired the  owners  of  every  electric  light  or  street  railway  pole  standing  upon  the 
street,  avenue  or  alleys  of  said  city  to  pay  said  city  an  annual  license  of  25  cents  per 
pole. 


Cr^ 


312  WISCONSIN  TELEPHONE   COMPANY   V.   MILWAUKEE. 

pends  upon  the  extent  and  expense  of  the  municipal  supervision  made 
necessary  by  the  business  in  the  city  or  town  where  it  is  licensed.  A 
fee  sufficient  to  cover  the  expense  of  issuing  a  license,  and  to  pay  the 
expenses  which  may  be  incurred  in  the  enforcement  of  such  police  in- 
spection or  superintendence  as  may  be  lawfully  exercised  over  the 
business,  may  be  required.  It  is  obvious  that  the  actual  amount  nec- 
essary to  meet  such  expenses  cannot,  in  all  cases,  be  ascertained  in 
advance,  and  that  '  it  would  be  futile  to  require  anything  of  the  kind.' 
The  result  is,  if  the  fee  required  is  not  plainly  unreasonable,  the  courts 
ought  not  to  interfere  with  the  discretion  exercised  by  the  counciliBL 
fixing  itj  and  unless  the  contrary  appears  on  the  face  of  the  ordinance 
requiring  it,  or  is  established  by  proper  evidence^  they  should  presume 
it  reasonable." 

WISCONSIN  TELEPHONE  COMPANY  v.  MILWAUKEE..   ^^''^^ 

1905.     126   Wis.  1.  />  ^i:it.^\^ 

r  Appeal  from  an  order  overruling  plaintiff's  demurrer  to  defendant's  "  /  1 
answer.  The  complaint  alleges  that  plaintiff  was  a  corporation  which  ft'0-\ 
had  erected  telephone  poles  in  the  defendant  city  and  that  an  ordi-  n,^^ 
nance  of  the  city  provided  for  inspection  of  the  poles  and  an  annual  ,  .a- 
license  fee  of  one  dollar  per  pole  ;  that  this  fee  is  unreasonable  ;  that  ,  rt 
plaintiff's  permission  to  operate  its  system  was  derived  from  the  state  '^ 
and  not  from  the  city  ;  and  aslis  for  an  injunction  against  the  enforce-  .  i"^^ 
ment  of  the  ordinance.  The  answer  denies  that  the  fee  is  unreason-  i  \ 
able,  and  that  the  ordinance  is  void.^  \^ 

Kekwin,  J.  The  questions  presented  here  upon  the  facts  admitted 
by  the  demurrer  are  thus  stated  by  respondent: 

''First.  Has  the  city  authority  to  exact  a  license  such  as  is  pro- 
vided for  in  the  ordinance,  the  enforcement  of  which  the  appellant 
seeks  to  enjoin? 

"  Second.  Does  the  ordinance  in  question  contravene  the  foiu-teenth 
amendment  of  the  federal  constitution  and  sunilar  provisions  of  the 
Wisconsin  state  constitution?" 

The  first  proix>sition  stated  by  counsel  practically  embraces  the  con- 
troversy before  us,  and  we  shall  proceed  to  consider  the  right  of  the 
defendant  city  to  exact  the  license  fee.  It  is  apparent  from  the  argu- 
ment of  counsel  for  respondent,  as  well  as  from  the  authorities  cited, 
that  the  ordinance  is  sought  to  be  upheld  under  power  of  the  defend- 
ant city  to  license  the  plaintiff  and  exact  the  license  fee  provided  for 
in  the  ordinance.     It  is,  however,  contended  that  the  license  fee  is  not 

1  This  short  statement  of  facts  is  substituted  for  that  of  the  Reporter.  Arguments 
omitted.  —  Ed. 


WISCONSIN   TELEPHONE   COMPANY   V.   MILWAUKEE.  313 

exacted  for  any  right  or  privilege  conferred  upon  the  plaintiff,  but 
simply  as  a  police  regulation,  and  reference  is  made  to  the  provisions 
of  the  city  charter  conferring  power  to  prevent  the  incumbering  of 
streets,  lanes,  and  alleys,  and  giving  the  city  the  right  to  control  and 
regulate  the  streets,  alleys,  and  public  grounds  of  said  city,  and  under 
these  provisions,  as  well  as  under  the  general  police  power,  it  is  con- 
tended that  the  ordinance  is  in  the  nature  of  a  police  regulation.  __yat 
power  ib  conferred  upon  the  defendant  under  its  charter  or  ])y  any  law  : 
oT^this  state  to  grant  to  the  plaintiff  the  privilege  of  constructing, 
maintaining,  or  operating  its  telephone  lines  upon  the  streets  of  defend- 
ant city.  This  authority  is  specifically  conferred  by  the  legislature  jaf 
tS^'state,  subject  only  to  the  provision  that  it  shall  not  "olistruct  or 
incommode  the  public  use  of  any  road,  highway,  bridge,  stream  or 
Eody  of  water."  No  authority  is  conferred  upon  the  defendant  to  im- 
pose any  other  condition  upon  the  plaintiff  except  such  as  it  may  law- 
fully impose  under  its  power  to  control  and  regulate  the  streets,  alleys, 
and  public  grounds  and  prevent  the  incumbering  thereof,  and  its  gen- 
eral police  powers.  Beyond  this  it  has  neither  the  right  to  confer  any 
privilege  upon  the  plaintiff  in  the  use  and  occupation  of  streets,  nor  to 
impose  conditions.  St((te  ex  rel.  Wis.  Tel.  Co.  v.  Sheboygan,  111  Wis. 
23,  86  N.  W.  657  ;  Marshfidd  v.  Wis.  Tel.  Co.  102  Wis!  604,  78  N.  TT. 
735.  It  is  very  clear  that  the  defendant  had  no  power  to  exact  a 
license^ee  from  the  plaintiff  for  the  privilege  of  constructing,  main- 
taining, or  operating  its  telephone  lines  upon  the  streets  of  defendant 
cityT  Wis.  Tel.  Co.  v.  OshJcosh,  62  Wis.  32,  21  X.  W.  828.  And  it  is 
conceded  on  the  part  of  the  respondent  that  the  ordinance  can  only  be 
sustained  on  the  theory  of  a  police  regulation.  It  will  be  seen,  how- 
ever, that  the  cases  cited  by  respondent  are  cases  where  the  license  fee 
was  upheld  upon  the  ground  that  the  municipality  had  the  right  to 
grant  some  privilege  to  the  company  licensed,  and  for  the  granting  of 
which  a  license  fee  was  sustained,  or  where  the  purpose  of  the  ordi- 
nance was  to  regulate  and  not  to  license.  Counsel  for  respondent 
frankly  concedes  that  the^city  has  no  franchise  to  grant  to  the  plaintiH, 
and  no  power  to  confer  under  which  the  poles  and  wires  may  be  main- 
tained in  streets,  but  contends  that  under  the  broad  power  of  regula- 
tion conferred  by  the  legislature  and  the  police  power  it  has  the  right 
to  make  and  enforce  reasonable  regulations  for  the  protection  and 
safety  of  its  citizens,  and  quotes  at  length  from  W.  U.  Tel.  Co.  v.  Phila- 
delphia (Pa.),  21  Am.  &,  Eng.  Corp.  Cases,  40,  12  Atl.  144  ;  but  the  case 
is  not  in  point  upon  the  proposition  asserted,  for  the  reason  that  the 
city  of  Philadelphia  had  the  power  to  grant  to  the  company  the  right 
to  occupy  the  streets  and  impose  upon  the  company  such  conditions 
and  regulations  as  the  municipal  authorities  might  deem  necessary,  and 
the  court  said  : 

"  That  such  is  the  relation  of  the  city  to  the  various  companies  which 
had  been  empowered  to  occupy  its  streets  with  a  view  to  gain  is  to  me 
abundantly  clear,  and  they  should  not  grudge  a  reasonable  compensa- 


314  WISCONSIN   TELEPHONE   COMPANY   V.   MILWAUKEE. 

tion  for  the  space  they  occupy  and  the  risks  which  she  incurs  on  their 
account." 

Council  quotes  from  C,  M.  &  St.  P.  R.  Co.  v.  Milivaukee,  97  Wis. 
418,  72  N.  "W.  1118,  to  the  effect  that  the  charter  of  a  corporation 
does  not  exempt  it  from  police  supervision  and  regulation,  which  is 
true  as  applied  in  that  case  ;  but  the  question  here  is  not  one  of  escape 
from  police  regulation,  but  whether  the  ordinance  of  the  defendant  is 
within  it.  People  ex  rel.  N.  Y.  E.  L.  Co.  v.  Squire,  107  N.  Y.  593, 
14  X.  E.  820,  clearly  involves  a  regulation  under  a  statute  of  New 
York  concerning  such  companies,  and  which  provided  for  the  removal 
of  such  wires  and  cables  from  the  surface  of  the  streets  and  laying  the 
same  under  ground,  and  the  court  said  (107  N.  Y.  602,  14  N.  E.  823) : 

"The  claim  that  this  law  is  void  because  it  imposes  a  tax  on  the 
companies  referred  to  cannot  be  maintained.  The  act  of  1884  imposes 
the  duty  upon  such  companies  to  remove  and  cause  to  be  laid  under- 
ground all  such  wires  and  cables  as  are  required  in  their  business,  and 
there  is  no  reason  why  such  companies  should  not  be  subjected  to  the 
pa^^ment  of  all  expenses  incurred  in  the  construction  of  works  required 
to  carry  on  their  own  business." 

In  State  ex  rel.  Wis.  Tel.  Co.  v.  Janesville  St.  R.  Co.  87  Wis.  72,  57 
N.  W.  970,  the  question  involved  under  the  ordinance  was  one  ot  rea- 
sonable regulation.  The  ordinance  provided  for  the  location  and  use 
of  electric  wires  in  the  streets,  reasonable  safeguards  for  the  same, 
and  a  penalty  for  the  violation  of  the  regulation.  No  license  fee  what- 
ever was  exacted.  It  was  purely  a  regulation  requiring  safeguards 
and  providing  a  penalty  for  failure  to  furnish  the  same.  Marshfield  v. 
Wis.  Tel.  Co.  102  Wis.  604,  78  N.  W.  735,  involved  the  question  of 
the  city's  right  to  control  its  streets  and  prohibit  the  incumbering  of 
the  same,  and  it  was  held  that  under  this  power  the  city  had  the  right 
to  prevent  the  incumbering  by  telephone  poles  certain  of  its  streets,  in 
the  exercise  of  a  reasonable  discretion,  and  that  the  common  council 
had  a  reasonable  discretion  in  the  location  of  such  poles.  The  domi- 
nant purpose  of  the  street  being  for  public  passage,  any  appropriation 
of  it  by  legislative  sanction  to  other  objects  must  be  deemed  to  be  in 
subordination  to  this  use.  The  decision  only  goes  to  the  extent  of  au- 
thorizing a  reasonable  regulation  on  the  part  of  the  city.  In  Baltimore 
v.  Baltimore  T.  &  G.  Co.  166  U.  S.  673,  17  Sup.  Ct.  696,  it  was  held 
that  the  street  railway  company,  occupying  the  streets  by  permission 
of  the  municipality,  was  subject  to  reasonable  regulations  by  subse- 
quent ordinances,  and  that  the  city  did  not  exhaust  its  power  of  regu- 
lation by  one  exercise  of  it.  In  Pidladelphia  v.  W.  U.  Tel.  Co.,  11 
Phila.  327,  the  telegraph  company  commenced  the  construction  of  a 
new  line  on  the  streets,  and  the  city  sought  to  regulate  such  construc- 
tion. Its  right  of  regulation  was  sustained  on  the  ground  that  the  tele- 
graph company  was  occupying  the  streets  by  permission  of  the  city 
under  the  restriction  that  it  should  not  use  the  streets  of  Philadelphia 
without  the  consent  of  the  mayor  and  city  council  first  had  and  ob- 


WISCONSIN   TELEPHONE   COMPANY   V.   MILWAUKEE.  315 

tained.  The  cases  generally  cited  by  counsel  for  respondent  from 
Pennsylvania  and  from  the  Supreme  Court  of  the  United  States  upon 
appearFrom  that  state  turn  upon  the  laws  of  that  state,  which  authorize 
municipalities  to  grant  permission  to  such  companies  to  occupy  the 
streets  and  impose  such  conditions  and  regulations  as  the  municipal 
authorities  may  deem  necessary.  No  such  power  is  conferretl  upon 
municipal  corporations  in  Wisconsin.  State  ex  rd.  Wis.  Td.  Co.  v. 
ETieboygon,  111  Wis.  23,  8G  X.  W,  657.  Ash  v.  People,  11  Mich.  347, 
upholds  the  right  of  the  city  of  Detroit  to  pass  an  ordinance  prohibit- 
ing the  keeping  of  stalls  for  the  sale  of  fresh  meats  outside  of  the  pub- 
lic markets  without  license  and  payment  of  license  fee  under  its  char- 
ter, which  expressly  empowered  the  common  council  to  license  and 
regulate  butchers  and  the  keepers  of  shops  and  stalls.  ITarmet  v. 
State,  45  Ohio  St.  63,  12  N.  E.  463,  is  a  case  where  right  to  license  is 
upheld  under  express  legislative  authority  given.  Also  in  State^. 
Herod,  29  Iowa,  123,  power  was  conferred  upon  the  city  to  license  1 
In  S"t7~LoiLns""tire  title  to  the  streets  being  in  the  city,  and  the  charter 
giving  the  right  to  license,  tax,  and  regulate  telegraph  companies,  it 
was  held  that,  the  city  having  the  right  to  grant  the  use  of  the  streets 
to  telegraph  companies,  it  regulates  the  use  when  it  prescribes  the 
terms  and  conditions  upon  wiiich  they  shall  be  used.  The  case  turns 
upon  the  power  of  the  city  to  grant  the  right  to  use  the  streets  to  the 
telegraph  company.  St.  Louis  v.  W.  U.  Tel.  Co.  149  U.  S.  465,  13 
Sup.  Ct.  990. 

But  we  will  not  further  extend  discussion  of  cases  cited  by  respond- 
ent. It  is  manifest  they  do  not  support  the  proposition  that  the  de- 
fendant has  authority  to  exact  a  license  such  as  is  provided  for  in  the 
ordinance  in  question.  The  power  rests  in  the  state  to  determine  what 
occupations  shall  be  licensed.  Wis.  Tel.  Go.  v.  Oslikosli,  62  Wis.  32, 
21  N.  W.  828;  State  ex  rel.  Wis.  Tel.  Co.  v.  Sheboygan,  111  Wis  23, 
86  N.  W.  657;  Cooley,  Const.  Lim.  (7th  ed.)  884.  And  it  is  not 
claimed  that  any  power  had  been  granted  to  the  defendant  by  the  leg- 
islature to  license  the  plaintiff^  nor  is  it  claimed  that  the  plaintiff  has 
failed  to  comply  with  all  regulations  respecting  its  use  of  the  streets, 
or  that  it  has  violated  the  law  granting  it  the  right  to  occupy  the 
streets  by  obstructing  or  in  any  manner  interfering  with  the  public  use 
of  the  streets  of  defendant.  And,  no  power  having  been  delegated  to 
defendant  to  license  plaintiff,  it  could  not  exact  a  license  fee  as  a  means 
of^ raising  revenue.  Wis.  Tel.  Co.  v.  OsJiTcosh,  supra;  State  ex  rel. 
Wis.  TeL  Co.  v.  Sheboygan,  supra;  Marshfield  v.  Wis.  Tel.  Co.  102 
Wis.  604,  78  N.  W.  735 ;  State  ex  rel.  Wis.  Tel.  Co.  v.  Sheboygan,  114 
Wis.  505,  90  N.  W.  441 ;  Mich.  Tel.  Co.  v.  Benton  Harbor,  121  Mich. 
512,  80  N.  W.  386.  But  it  is  claimed  that  the  ordinance  is  a  regula- 
tion and  not  a  revenue  measure,  and  that  it  may  be  sustained  upon  the 
theory  that  the  defendant  has  the  right  to  impose  such  fee  for  super- 
vision and  inspection  under  the  police  power.  Whether  the  city  has 
power  to  impose  any  fee  upon  the  plaintiff  for  inspection  and  super- 


316  WISCONSIN    TELEPHONE   COMPANY   V.    MILWAUKEE. 

vision  is  not  necessary  to  decide,  and  we  do  not  decide,  in  this  case, 
because  it  is  clear  that  the  ordinance  was  passed  for  no  such  purpose,' 
but,  ou  the  contrary,  was  an  attempt  to  charge  plairitift  for  the  privi- 
lege of  maintaining  its  poles  and  wires  in  the  streets.  If  the  city  had 
power  to  grant  any  privileges  in  the  streets  to  the  plaintiff,  or  had  ex- 
press authority  from  the  legislature  to  license  the  plaintiff  so  as  to 
bring  its  case  within  the  authorities  cited,  the  respondent's  position 
would  be  quite  different.  But,  as  before  observed,  the  defendant 
had  no  right  or  privilege  to  grant  to  the  plaintiff,  and  no  power  to 
prevent  its  use  of  the  streets  in  a  reasonable  manner  consistent  with 
the  public  use,  and  the  provisions  of  the  ordinance  set  out  in  the 
statement  of  facts  show  that  it  was  a  revenue  measure  and  not  a 
regulation. 

The  ordinance  requires  telephone  and  telegraph  companies  to  apply 
annually  for  a  license  to  maintain,  for  the  ensuing  year,  the  poles  and 
cross-arms  then  erected,  and  provides  for  payment,  for  the  use  of  the 
city,  of  one  dollar  for  each  and  every  pole  authorized  to  be  maintained 
thereby.  The  ordinance  further  provides  that  all  revenue  derived  from 
such  license  shall  become  part  of  the  general  city  fund,  and  imposes  a 
penalty  for  any  violation,  and  further  provides  that  the  erection  or 
maintenance  of  an}'  single  pole  or  cross-arm  in  violation  of  the  provi- 
sions thereof  shall  constitute  a  distinct  and  separate  offense  thereunder. 
The  plain  import  of  this  ordinance  is  that  it  grants  the  privilege  to  tele- 
phone and  telegraph  companies  to  occupy  the  streets  of  defendant 
city  with  their  poles  and  cross-arms  in  consideration  of  the  license  fee 
exacted.  Nenman  v.  State,  7G  AVis.  112,  45  N.  W.  30  ;  Chilvers  v. 
People,  11  Mich.  43;  Home  Ins.  Co.  v.  Augusta,  50  Ga.  530.  There 
is  nothing  in  the  ordinance  indicating  that  the  fee  is  exacted  for  inspec- 
tion or  supervision,  or  that  it  will  be  used  for  such  purpose,  or  that  any 
such  amount  is  necessary  to  defray  the  expense  of  such  inspection  and 
supervision,  and  it  is  quite  obvious  that  the  aggregate  amount  sought 
to  be  collected  would  be  far  beyond  the  reasonable  expense  of  such 
inspection  and  supervision.  We  think  it  safe  to  say  that  any  reason- 
able cost  of  inspection  and  supervision  would  not  exceed  one  teatkjQf- 
the  revenue  chargeable  according  to  the  terms  of  the  ordinance.  True, 
where  the  power  to  license  exists,  a  reasonable  discretion  is  vested  in 
the  municiijality,  but  courts  have  a  right  to  look  into  ordinances  with  a 
view  of  determining  whether  they  are  passed  for  the  purpose  of  reve- 
nue, although  sought  to  be  upheld  as  police  regulations.  Even  if  the 
city  had  the  right  to  impose  reasonable  charges  for  inspection  and  su- 
pervision, it  should  not  be  permitted  under  the  guise  of  such  power  to 
collect  large  amounts  of  revenue  for  the  benefit  of  the  city  regardless 
of  the  amount  necessary  for  such  inspection  and  supervision.  And 
where  the  court  can  clearly  see  that  revenue  and  not  regulation  is 
the  aim  and  not  the  incident,  and  no  power  is  given  to  license  the  oc- 
cupation, the  ordinance  is  void.  Wis.  Td.  Co.  v.  Oslikosli,  62  Wis. 
32,  21  N.  W.  828;  State  ex  rel.  Wis.  Td.  Co.  v.  Sheboygan,  111  Wis. 


NEW   LONDON    V.    BARNARD.  317 

23,  40,  41,  86  N.  W.  657;  Postal  T.  C.  Co.  v.  Taylor,  192  U.  S.  64,  24 
Sup.  Ct.  208  ;  Mich.  Tel.  Co.  v.  Bi-nton  Harbor.  121  Mich.  512,  80  N.  W. 
386;  Mayor,  etc.,  v.  Second  Ace.  It.  Co.  32  N.  Y.  261;  Memphis  y. 
Am.  Exp.  Co.  102  Teun.  336,  52  S.  W.  172. 

It  follows  from  what  has  been  said  that  the  order  must  be  reversed. 

By  the  Court.  —  The  order  of  the  court  below  is  reversed,  and  the 
cause  remanded  with  instructions  to  sustain  the  demurrer. 


\^^s}^ '  ^..jC'''^''^^    Section  V.     Poioer  to  expend  money, 
-r^  ,^X-  NEW  LONDON  v.  BARNARD. 

^     ^  1853.     22  Conn.  552. 

Bill  in  equity  to  enjoin  the  city  of  New  London  from  expending 
monej'  to  celebrate  the  anniversary  of  national  independence.^ 

Storks,  J.  It  is  well  established,  that  corporations  have  only  such 
rights  and  powers  as  are  expressly  granted  to  them,  or  as  are  necessary 
to  caiTy  into  effect  the  rights  and  powers  so  granted. 

It  was  accordingly  held,  in  Stetson  v.  Kemplon,  13  Mass.  R.  272, 
where  this  principle  is  very  fully  vindicated  and  explained,  that  towns 
have  no  authority,  in  their  corporate  capacity,  in  time  of  war  or  dan- 
ger of  hostile  invasion,  to  vote  money  and  cause  it  to  be  assessed  upon 
the  inhabitants,  for  the  purpose  of  raising  money  to  give  additional 
wages  to  the  militia,  or  for  the  purpose  of  defence  in  cases  of  in- 
vasion:  and  in  Hodge  v.  The  City  of  Buffalo.,  2  Denio,  110,  that  the 
defendants  had  no  power  to  contract  a  debt,  for  the  purpose  of  defray- 
ing the  expense  of  celebrating  the  anniversary  of  our  national  in- 
dependence. In  the  former  of  these  cases,  the  action  was  against  the 
assessors  of  the  town,  who  assessed  a  tax,  which  was  collected,  in 
part,  of  the  plaintiff,  in  pursuance  of  a  vote  of  the  town,  to  raise  a 
certain  sum  of  money  for  the  paj'raent  of  additional  wages  to  the 
militia,  and  other  expenditures  of  defence  ;  and  the  court  refrained 
from  expressing  an  opinion  on  the  question  whether  any  money 
actually  in  the  treasury  of  the  town,  beyond  what  is  needed  for  its  or- 
dinary expenses  and  which  is  unappropriated,  may  be  disposed  of  in 
pursuance  of  a  vote  of  the  inhabitants,  for  the  common  defence.  In 
the  latter  case,  the  action  was  brought  against  the  cit}'  of  Buffalo,  to 
recover  the  amount  of  the  expenses  which  it  had,  by  a  vote,  authorized 
a  committee  to  incur  on  its  behalf.  We  are  unable  to  perceive  any 
just  ground  of  discrimination  between  a  disposition  of  moneys  already 

1  This  short  statement  substituted  for  that  of  the  Reporter.  Arguments  and  part 
of  the  opinion  omitted. — Ed. 


318  HITCHCOCK   V.    ST.    LOUIS. 

in  the  treasury  of  the  corporation,  and  a  vote  to  raise  money  by  a  tax. 
■^"a  contract  to  pay  money,  for  such  unauthorized  purpose. 

We  do  not  find,  nor  have  we  been  referred  to,  any  express  power  in 
the  charter  of  the  city  of  New  London,  nor  is  there  any  general  law, 
authoriziug  an  expenditure  of  money,  for  the  purpose  for  which 
the  vote  in  question  was  passed ;  nor  is  any  power  conferred  on  that 
city,  for  the  exercise  of  which  such  an  expenditure  is  necessary.  We 
think,  therefore,  that  that  vote  is  not  binding  on  the  plaintiffs. 

HITCHCOCK  V.  ST.  LOUIS.    (>--ssA^^cfc^  j  W^--^ 

1872.    49  3/0.484.  ^C^^^M.  C    t^ 

Wagner,  J.^  This  suit  was  brought  to  test  the  validity  or  an  or-  ^vvt 
dinance  passed  by  the  city  council  of  the  city  of  St.  Louis,  by  which  (l„^^\ 
the  sum  of  $1,500  was  appropriated  out  of  the  general  revenue  and  /  | 
ordered  to  be  paid  to  the  mother  superior  of  St.  Ann's  Orphan  Asylum  .  % 
and  Widows'  Home,  as  a  donation  from  the  city  toward  the  mainte-  ' 
nance  and  support  of  that  institution.  The  court  below  decided  that  the 
ordinance  was  invalid,  and  that  the  council  possessed  no  power  to 
make  the  appropriation,  and  from  that  decision  this  appeal  is  pros- 
ecuted. The  general  grant  of  corporate  powers  contained  in  the  charter 
incorporating  the  city  gives  it  authority  to  ''  purchase,  receive  and 
hold  property,  real  and  personal,  within  said  city,  and  also  hold 
the  like  beyond  the  limits  of  the  city,  to  be  used  for  the  burial  of  the 
dead  of  the  city ;  also  for  the  erection  of  waterworlvs  to  supply  the  city 
with  water ;  also  for  the  establishment  of  a  hospital  or  hospitals  for  the 
reception  of  persons  infected  with  contagious  and  other  diseases  ;  also 
for  a  poor-house  or  poor-houses,  work -house,  house  of  correction, 
or  for  any  other  purpose ;  and  may  sell,  lease,  or  dispose  of  pi^operty 
for  the  benefit  of  the  city ;  may  receive  bequests,  gifts  and  donations 
of  all  kinds  of  property,  within  and  without  the  city,  for  chari- 
table and  other  purposes,  and  may  do  all  acts  necessary  to  carry  out  the 
purposes  of  such  bequests,  gifts  and  donations,  with  power  to  sell, 
lease,  dispose  of  and  manage  the  same."  In  the  article  defining 
the  legislative  powers  of  the  city  council,  the  council  is  invested  with 
power  "  to  make  all  such  ordinances,  not  inconsistent  with  the  laws  of 
this  State,  as  may  be  expedient,  maintaining  the  peace,  good  govern- 
ment and  welfare  of  the  city,  and  its  trade,  commerce  and  nianu-  . 
factures."  Do  any  of  the  above  enumerated  grants  authorize  the  city 
council  to  appropriate  or  give  away  the  public  moneys  as  pure  dona- 
tions or  gratuities?  We  do  not  think  the  donation  can  be  upheld 
on  the  ground  that  it  is  germain  or  incident  to  any  power  granted. 
The  council  may  exercise  implied  or  incidental  powers  wherever  they 

^  Arguments  omitted. — Ed. 


COOLIDGE   V.   BROO KLINE.  319 

are  necessary  to  carry  out  or  execute  those  clearly  expressed.  And 
^here  the  corporate  authorities  have  a  discretion,  courts  will  not 
ordinarily  interfere.  But  when  they  act  they  must  show  some  grant 
or  power  to  authorize  their  action.  Thejnty_council,  in  the  discharge 
of  their  duties,  do  not  act  for  themselves,  but  for  the  public.  They 
are  trustees  nlotlied^  with  a  ti-ust,  not  for  the  corporation  as  such,  but 
for  the  citizens  and  the  public  who  have  confided  the  authority  to 
tliem.  The  charter  is  the  power  of  attorney  which  defines  and  limits 
the  objects  and  powers  with  which  they  are  entrusted.  The  diversion 
of  the  money  of  the  tax-payers  for  any  purpose  other  than  that  which 
is  expressed  in  the  charter,  is  a  perversion  of  the  trust  and  an  excess  of 
authority.  That  there  is  no  express  power  in  the  charter  conferring 
authority  to  make  donations,  gifts  or  gratuities,  is  too  clear  to  require 
any  argument. 

The  donee  is  a  mere  i)rivate  institution,  not  under  the  control  of  the 
city  and  having  no  connection  with  it.  If  the  tax-pa3'ers'  money  can 
Be  takeij  and  given  to  it,  it  may  be  also  to  any  other  private  corpora- 
tion, or  it  may  be  distributed  gratuitously  to  individuals.  It  is  clear 
that  the  charter  confers  no  such  authority,  and  we  think,  therefore, 
that  the  judgment  should  be  affirmed.     The  other  judges  concur. 

V^,    M^-^^ ^^   ^  COOLIDGE  V.  BEOOKLINE. 
"^(V  .A2>^-.fe*5-'^^  1874.     114  Mass.  592. 


^ 


Endicott,  J.  This  is  a  petition  by  ten  tax-payers  to  restrain  the 
town  of  Brookline  from  paying  money  from  its  treasury  for  an  alleged 
^illegal  purpose.  Gen.  Sts.  c.  18,  §  79.  On  October  13,  1873,  an  order 
was  introduced  in  the  board  of  aldermen  of  Boston,  that  the  mayor  be 
requested  to  petition  the  Legislature  for  an  act  annexing  a  portion  of 
Brookline  to  Boston.  It  does  not  appear  that  the  order  was  passed,  or 
that  any  further  action  was  taken  upon  it.  The  selectmen  of  Brookline, 
October  17  following,  issued  a  warrant  for  a  town  meeting  to  be  held 
October  28,  to  act,  among  other  things,  upon  the  proposition  of  the  city 
of  Boston  to  annex  thereto  a  part  of  Brookline.  At  this  town  meeting 
it  was  voted  that  certain  persons  "  be  a  committee  for  the  purpose  of 
preventing  the  annexation  of  the  town,  or  any  part  thereof,  to  the  city 
6T  Boston,  and  that  they  be  authorized  to  employ  counsel,  and  such 
other  means  as  they  deem  expedient."  To  defray  their  expenses,  they 
were  authorized  by  the  same  vote  to  draw  orders  on  the  treasurer,  who 
was  directed  to  pay  the  same,  and  charge  such  payments  "  to  the  ap- 
propriation for  contingencies."  It  was  also  "  voted  to  raise  and  appro- 
priate for  contingencies  $10,000." 

The  answer  of  the  defendants  admits  that  if  a  petition  is  presented 
to  the  Legislature  asking  for  an  act  annexing  the  whole  or  any  part  of 


/ 


I 


320  COOLII'GE    V.   EE':>OKLINE. 

Brookline  to  Boston,  the  committee  will  appear  with  counsel  before  the 
Legislature  or  a  committee  thereof,  and  oppose  the  passage  of  such  act, 
and  pay  their  expenses  by  orders  drawn  in  pursuance  of  the  vote  of  the 
town.  And  they  claim  that  the  town  has  the  legal  right  so  to  appoint 
a  committee  and  appropriate  money,  and  that  the  votes  of  the  town 
'*axe  valid-  and  within  the  lawful  power  of  the  town  of  Brookline 
to  pass." 

A  copy  of  a  petition  by  certain  inhabitants  of  Brookline  to  the  Leg- 
islature for  a  change  in  the  botmdary  lines  between  Brookline,  Boston 
and  Brighton,  was  served  on  the  town  October  20,  but  this  was  after 
the  warrant  for  the  town  meeting  had  issued,  and  no  action  of  the 
town  on  this  petition  is  before  us.  The  action  of  the  meeting  was 
based  upon  the  order  introduced  into  the  board  of  aldermen  of  Boston. 
Several  questions  were  raised  by  the  petitioners  uj)on  the  regularity  of 
the  proceedings  at  the  meeting,  and  it  was  argued  that  the  town  could 
take  no  legal  action  upon  the  mere  introduction  of  such  an  order,  and 
could  not  legally  appropriate  money  for  contingencies. 

As  these  questions  relate  to  the  formality  of  the  proceedings,  and  do 
not  involve  the  decision  of  the  case  upon  its  merits,  we  prefer,  without 
expressing  any  opinion  upon  them,  to  consider  the  principal  question, 
which  has  been  fully  presented  in  the  arguments  of  counsel.  That 
question  is  distinctly  raised  in  the  answer,  and  the  town  asserts  that  it 
is  the  intention  of  the  committee  to  use  the  money  appropriated  for  the 
purposes  named  in  the  vote,  and  that  it  is  legal  so  to  do.  The  simple 
G£^:-^;  ^  therefore  is.  has  a  town  power  by  law  to  tax  its  inhabitants  for 
es;,  -  —  iiicurred  in  opposing  before  the  Legislature  the  annexation  of 
the  whole  or  part  oi  its  temtory  to  anotner  city  or  town? 

in  Mi  not  v.  West  Uos^vry,  112  Mass.  1.  it  was  held  that  a  town  could 
not  legally  raise  money  and  tax  its  inhabitants  to  pay  the  expenses  of 
a  committee  appointed  to  petition  the  Legislature  for  its  annexation  to 
Boston,  and  to  advocate  and  urge  such  annexation  with  counsel  before 
the  Legislature.  This  decision  rested  on  the  proposition  that  such  ac- 
tion was  not  in  the  line  of  its  oorpwrate  duty  as  a  town,  and  was  not 
for  a  purpose,  and  did  not  relate  to  a  subject  matter  for  which  towns 
by  the  statutes,  either  in  terms  or  by  implication,  are  empowered  to 
raise  money  and  tax  their  inhabitants.  Such  power  to  tax  must  in  all 
cases^rirg  f ronajhe  statutes,  and  must  be  toand  Lbere  Hi  U;im&.  ur"be 
necessarily  inferred  from  .soaie  eorporatt*  ^'|<iy  irnpftH^  nr  some  eor- 
porat--  -  "  given.  The  only  exception  to  this  rule  is  confined  to  a  few 
cases  o:  usage  relating  to  the  comfort  and  convenience  of  the  inhabit- 
ants of  a  town,  such  as  town  clocks,  hay-scales,  pumps,  reservoirs.  Sac, 
and  is  not  to  be  extended.  Towns  have  been  kept  rigidly  within  this 
rule  both  by  the  Legislature  and  the  courts.  Its  observance  is  neces- 
sary from  the  chsu^acter  of  their  organization  and  from  the  nature  of  the 
delegated  powers  which  they  exercise;  and  as  tiiere  is  no  con':  ''  _ 
power  provided  by  law  to  restrain  and  limit  them  in  the  expen-  ;  ^.  ^ 
the  J  can  by  law  incur,  and  for  which  they  can  lay  taxes,  it  is  of  the 


COOLIDGE    V.   BROOKLINE.  321 

first  importance  to  the  tax-payer  that  they  exercise  this  great  power 
for  authorized  purposes,  and  a  summary  remedy  against  abuse  of  such 
legal  power  is  given  by  the  statute  under  which  this  bill  is  brougiit. 

The  cases  on  this  subject,  as  bearing  on  the  question  here  presented, 
were  so  fully  considered  in  Minot  v.   Went  Roxbunj,  that  it  is  unneces- 
sary to  review  them  here.     As  preliminary  to  this  discussion  it  may, 
however,  be  said  that  (ien.  Sts.  c.  IH,  §  10,  recites  in  detail  the  pur-j    ^_a^>.         '^ 
poses  for  which  towns  may  raise  money,  closing  with  the  clause,  "_Forl  LXtvl,^- 
all  other  necessary  charges  arising  therein."     These  words  are  held  to|  'V'*-<>-^ 
mean  all  necessary  charges  incurred  in  the  exercise  of  any  duties  con-     ''«*-<-«'**-«^ 
ferred  or  powers  given  in  other  portions  of  the  General  Statutes  or  in 
subsequent  statutes,  necessarily  involving  the  expenditure  of  money,  but 
what  are  necessary  charges  must  in  all  cases  be  determined  by  the 
statutes. 

Nothing  in  the  statutes  being  found  that  could  in  terms  or  by  impli- 
cation make  the  expenses  for  procuring  annexation  to  Boston,  by  an 
act  of  the  Legislature,  a  necessary  charge  within  the  meaning  of  the 
statute,  the  vote  of  West  Roxbury  was  declared  illegal.  See  Attorney 
General  v.  Norwich,  16  Sim.  225.  Attorney  Geyieraly.  Guardians  of 
the  Poor  of  Southampton^  17  Sim.  G.  Graat  Western  Railway  v.  Rvshout, 
5  DeG.  &  Sm.  290,  309.  Simpson  v.  Denison,  10  Hare,  51,  61.  Upon  a 
cai-ef  ul  examination  of  the  statutes,  and  applying  the  same  rule  of  con- 
struction as  in  Minot  v.  West  Roxbury,  we  find  nothing, in  terms,  or  by 
necessary  implication,  making  expenses  for  resisting  a  change  in 
bounctary,  or  aThnexation  in  wh(jle  or  in  part  to  anotheFtownTotie  of  tliQ 
necessary  cliarges  named  in  the  statute.  The  bearing  of  Gen.  Sts.  c.  2, 
§  9,  will  liereafter  be  considered.  The  case,  so  far  as  the  statutes  are 
concerned,  falls  within  the  decision  of  Minot  \.  West  Roxbury,  unless  a 
distinction  can  be  made  between  the  right  of  a  town  to  raise  money  to 
promote  and  obtain  a  fundamental  change  in  its  organization  by  the 
sovereign  power,  and  its  right  to  defend  the  existing  order  of  things, 
and  preserve  inviolate  the  territory  within  its  jurisdiction,  before  the 
same  tribunal,  and  this  distinction  has  been  urged  with  much  force  by 
the  counsel  for  the  defendants. 

It  is  contended,  while  admitting  that  a  town  cannot  raise  money  to  ***" 

change  its  organization  by  annexation.  First,  that  the  right  to  defend  j      f  j)  e^c.^.^ 
its  existence,  and  maintain  its  corporate  limits  when  assailed,  is  incident  '      '^ 
and  necessary  to  the  exercise  of  its  corporate  duties,  and  the  accom-  ; 
plishment  of  the  purposes  for  w^hich  it  was  created  ;  that  questions  in 
which  it  is  deeply  interested  are  involved  by  such  action,  as  what  its 
boundary  shall  be,  what  of  the  town  property  shall  be  taken,  whether 
the  portion  left  will  be  sufficient  to  carry  on  the  town  organization, 
and  many  other  questions  of  vital  importance,  all  of  which  equally  ap- 
ply to  the  annexation  of  the  whole  to  another  city.     Second,  that  they 
have  a  right  to  be  heard  on  these  questions  before  the  Legislature,  or 
a  committee  thereof  sitting  as  a  tribunal  to  pass  judgment  between  the 
town  and  those  persons  or  corporations  seeking  to  disturb  their  rights; 


322  COOLIDGE   V.   BROOKLIXE. 

and  that  this  is  made  certain,  and  that  the  town  shall  appear  and  be 
heai'd  is  clear!}'  implied,  by  the  provisions  of  Gen.  Sts.  c.  2,  §  9. 

It  is  claimed  that,  this  right  to  defend  being  a  corporate  duty,  as  in- 
cident to  its  exercise,  the  inhabitants  may  be  taxed  for  the  aeeessary 
expenses  attending  it,  which  are  within  the  meaning  of  the  words 
"  necessary  charges." 

It  is  important  to  distinguish  the  precise  nature  and  extent  of  the 
right  which  it  is  asserted  to  be  the  duty  of  the  town  to  defend.  If  it 
is  in  no  absolute  or  qualified  sense  in  the  nature  of  a  vested  right,  no 
corporate  duty  would  seem  to  attach  to  it ;  and  the  town  having  no  cor- 
porate duty  in  relation  to  it,  no  consequent  power  to  raise  money  is  to 
be  implied. 

The  right  as  asserted  in  this  case,  is  the  right  of  the  town  of  Brook- 
line  to  continue  as  a  municipal  corporation  with  all  its  power  and  priv- 
ileges within  the  territorial  limits  now  assigned  it  by  law.  Questions 
might  arise  in  regard  to  other  rights  and  powers  conferred  on  towns 
by  general  or  special  legislation,  of  a  different  character,  subject  to  dif- 
ferent rules.  But  here  the  simple  question  is,  has  this  town  any  right 
to  its  present  territorial  limits,  which  it  has  a  corporate  duty  to  de- 
fend as  against  the  action  of  the  sovereign  power  from  which  it  derives 
its  existence,  and  by  which  it  is  invested  with  certain  subordinate  powers 
of  government  for  local  purposes  over  a  given  territory?  That  it  has 
such  a  right  to  these  limits  that  it  may  defend  them  before  all  other  tri- 
bunals is  unquestionable.  Such  right  may  be  said  in  one  sense  to  be 
vested  to  such  extent  that  it  may  be  asserted  aud  maintained  against  all 
persons  and  powers  except  the  government.  Numerous  illustrations 
of  this  could  be  given,  as  where  corporations,  persons,  or  officers  are 
clothed  with  certain  powers,  subject  to  the  control  of  the  Legislature. 
But  as  against  the  government  itself,  such  right  is  in  no  senje  vested^, 
and  no  consequeut  duty  is  imposed  on  the  corporation  to  resist  a 
change. 

The  towns  of  Massachusetts  do  not  exercise  their  powers  within  their 
limits  under  a  grant,  or  by  virtue  of  any  contract,  express  or  implied. 
They  are  political  organizations,  created  for  political  pur]X)ses,  and  as 
mere  instrumentalities  b}'  which  the  Legislature  administers  certain 
laws  within  particular  limits.  What  those  laws  shall  be,  it  is  for  the 
Legislature  to  determine,  and  from  time  to  time  modify,  change  or 
repeal.  Within  what  limits  a  particular  munici[ial  corpomtioii  slmll 
exercise  these  powers,  whether  it  shall  be  divided,  its  l;K)anti;uies7 
changed,  or  its  ten*itory  annexed  to  another  municipality,  is  for  the 
Legislature,  in  the  absence  of  constitutional  restriction,  to  detei- 
mine,  as  the  public  good  or  the  wants  or  necessities  of  inhabitants 
may  require.  Warren  v.  Mayor,  &c.,  of  ^'Jc'rlestotrn,  2  Gray,  S4,  ll>4.~ 
Ojnnion  of  Justices^  6  Cush.  578.  In  the  determination  of  these  ques- 
tions the  corporation  as  such  has  no  interest  —  no  corporate  duty  to'. 
j  perform.  The  correctness  of  this  proposition  is  made  manifest  by  a 
cursory  review  of  the  manner  in  which  towns  are  created  and  of  their 


COOLIDGE   V.   BEOOKLINE.  323 


relations  to  the  state.  An  act  establishing  a  town  extending  over  a 
certain  territory,  brings  within  its  jurisdiction  all  persons  residing  with- 
in its  limits.  It  is  imperative  and  binding  without  assent  or  acceptance, 
though  the  Legislature  in  its  discretion  may  make  that  a  condition  of 
its  gomg  into  operation. 

The  corporation  has  no  authority  to  enlarge  its  powers,  or  to  deter- 
mine who  shall  comprise  its  members,  and  has  no  duties  to  perform  but 
those  imposed  by  law.  It  cannot  surrender  its  franchises  or  dissolve 
itself.  It  is  created  for  public  ends,  and  can  only  cease  to  exist  b}* 
the  act  of  the  power  creating  it.  While,  therefore,  it  has  corporate 
duties  to  perform  to  the  extent  imposed  by  the  Legislature,  it  has 
no  duties  to  perform  in  regard  to  what  these  duties  shall  be,  or  over  what 
territory,  or  for  how  long  a  term  they  shall  be  exercised.  These  duties 
cannot  extend  beyond  the  powers  granted  and  include  any  duty  to 
maintain  such  powers.  This  question  is  entirely  independent  of  the 
agent,  trustee  or  depositary  called  a  town  and  intrusted  with  municipal 
power,  and  belongs  exclusively  to  the  Legislature.  People  v.  3forn's, 
13  Wend.  325.  State  Bank  of  Ohio  v.  Knooi),  16  How.  369,  380. 
Middle  v.  Proprietors  of  Locks  &  Canals,  7  Mass.  169,  187.  Warren  v. 
Mayor,  <&c.,  of  Charlestotvn,  supra.  Eastman  v.  Meredith,  36  N.  H. 
284.     Dillon  on  Mun.  Corp.,  §  23,  and  following  sections. 

It  is  difficult  in  considering  this  question  always  to  distinguish  be- 
tween the  wishes  and  interests  of  the  inhabitants  of  the  town  for  the 
time  being,  and  the  powers  and  the  duty  of  the  town  itself.  Much 
confusion  arises  from  failure  to  keep  the  distinction  in  mind.  But  as 
interests  and  wishes  change,  and  the  corporation  always  remains  the 
same,  the  only  true  test  is  to  be  found  in  the  legal  power  of  the  town. 
The  annexation  of  the  town  of  Brookline  to  Boston,  or  a  change  in  its 
boundaries,  may  seriously  and  vitally  affect  the  interest  of  its  present 
inhabitants,  and  be  repugnant  to  the  wishes  and  feelings  of  a  large 
majority,  but  they  cannot  use  the  corporate  powers  of  the  town  to  en- 
able them  to  oppose  such  change,  and  thereby  impose  burdens  on  the 
tax-payer,  when  the  town  has  no  corporate  duty  imposed  or  implied  by 
law.  And  that  the  town  has  no  such  duty  necessarily  follows  from  the 
character  of  its  powers,  and  from  its  relations  to  the  government.  A 
strikmg  instance  of  the  application  of  this  rule  is  found  in  Stetson  v. 
Kempton,  13  Mass.  272.  In  the  war  of  1812,  with  Great  Britain,  the 
enemy  were  on  the  coast  in  sight  of  Fairhaven,  they  were  then  laying 
waste  and  destroying  property  at  other  places,  and  the  propert}'^  and 
dwellings  of  the  inhabitants  of  Fairhaven  were  in  immediate  danger. 
The  town,  at  a  regular  meeting,  voted  unanimously  $1200  for  additional 
pay  for  militia  and  other  expenditures  of  defence.  But  the  court  held  « 
the  vote  to  be  illegal ;  that  the  town  had  no  authority  to  raise  money 
for  such  purpose,  and  no  legal  duty  to  protect  and  defend  its  inhabit- 
ants from  invasion. 

Several  English  cases  were  commented  on  in  the  argument,  some  of 
which  have  been  already  cited.     They  all  arose  upon  the  construction 


324  COOLIDGE   V.   BEOOKLINE. 

of  the  municipal  corporation  act,  5  &  6  Wra.  IV.  c.  76,  §  92.  That 
section,  after  specifying  certain  expenses  to  which  the  borough  fund 
is  to  be  applied,  uses  words  similar  in  their  meaning  and  application  to 
the  words  "other  necessary  charges"  in  our  own  statute:  "all  other 
expenses  not  herein  otherwise  provided  for  which  shall  be  necessarily 
incurred  in  carrying  into  effect  the  provisions  of  this  act."  Lord 
Cottenham  said  in  Attorney  General  v.  Mayor  of  Nonvich,  2  Mj'l.  & 
Cr.  406,425,  that  these  words  must  mean  "the  expenses  which  would 
arise  out  of  the  duties  imposed  on  the  parties  by  the  act."  And  in 
Queen  v.  Mayor  of  Sheffield,  L.  R.  6  Q.  B.  G52,  it  was  held  that  the 
expenses  incurred  for  the  benefit  of  the  inhabitants  by  the  maj^or  and 
aldermen  of  ShefBeld,  in  opposing  in  parliament  a  bill  introduced  in 
relation  to  a  supply  of  water  to  the  town,  could  not  possibly  be  an 
expense  necessarily  incurred  in  carrying  the  act  into  execution.  No 
duty  in  that  respect  being  imposed  by  the  act,  no  power  to  use  the 
borough  fund  followed. 

We  are  clearly  of  opinion  that  a  town  has  no  corporate  duty  to  de- 
fend its  boundaries  or  its  existence  before  the  Legislature,  and  has 
therefore  no  right  to  tax  its  inhabitants  therefor. 

But  the  defendants  also  claim  that  a  town  has  a  right  to  be  heard  by 
the  Legislature,  and  that  this  right  is  so  recognized  by  Gen.  Sts.  c.  2, 
§  9 ;  that  it  may  appear  legally  and  defend  its  right  as  a  town  and  may 
tax  its  inhabitants  for  the  expenses,  and  that  such  action  is  in  the  nature 
of  a  suit  before  the  General  Court,  having  jurisdiction  of  the  premises. 

It  was  said  in  Minot  v.  West  Roxhury,  that  the  right  of  the  people 
to  assemble  and  petition  for  redress  of  grievances  was  guaranteed  by 
the  Declaration  of  Rights,  Art.  XIX.  The  inhabitants  of  Brookline 
have  the  undoubted  right  to  assemble  and  consult  upon  the  common 
good,  to  express  their  opinions  for  or  against  annexation  or  change, 
and  take  such  means  either  by  address,  petition,  remonstrance,  or 
through  persons  properly  appointed,  to  inform  the  Legislature  of  their 
wishes.  The  Legislature  may  take  such  course  in  dealing  with  the  ap- 
plication, and  in  hearing  the  inhabitants  or  their  committee,  as  it  may 
judge  expedient  and  proper.  The  court  cannot  decide  upon  the  pro- 
priety of  such  application  or  how  it  should  be  heard ;  that  is  exclu- 
sively for  the  Legislature,  and  we  have  no  jurisdiction  over  the  question. 
It  is  only  on  the  validity  of  the  vote  to  raise  money  that  we  can  pass, 
and  while  the  committee  appointed  by  Brookline  may  properly  present 
the  wishes  of  the  town  in  regard  to  annexation  before  the  Legislature, 
we  do  not  think  that  this  general  right  to  address  the  Legislature  gives 
b}'  implication  any  right  to  tax  for  the  expenses  that  the  committee 
may  incur.  Nor  do  we  think  that  the  provisions  of  Gen.  Sts.  c.  2,  §  9, 
imply  any  additional  powers  in  the  town  in  that  respect.  "  Whoever 
intends  to  present  a  petition  affecting  the  rights  of  a  city  or  town,  shall 
cause  a  copy  to  be  served  on  the  city  or  town  "  in  the  manner  provided. 

The  word  "  riohts"  in  this  section  cannot  be  held  to  enlar2:e  existins: 
rights,  or  to  give  to  towns  any  powers  or  privileges  not  already  pos- 


COOLIDGE    V.    BROOKLINE.  325 

sessed.  The  whole  scope  of  this  section,  and  of  the  preceding  and 
following  sections,  relates  to  notice,  and  the  phraseology  must  be  con- 
strued with  reference  to  that  purpose.  These  sections  simply  provide, 
that  when  parties  propose  to  petition  the  Legislature  for  legislative 
action,  they  shall  give  notice  to  persons  or  corporations  who  may  be 
affected  by  such  action.  It  is  not  impera'tive  for  the  parties  notified 
to  appear,  or  take  any  action,  nor  is  there  any  intimation  in  the  statute 
what  action  shall  be  or  may  be  taken.  A  hearing  before  a  committee 
is  not  the  only  way  that  parties  notified  may  present  their  views  ;  they 
may  appear  by  remonstrance,  or  may  assent  to  and  join  in  the  petition. 
The  inhabitants  of  a  town  may  do  so  by  vote  at  a  town  meeting  under 
the  general  power  already  stated,  or  by  instructing  their  representa- 
tives, or  may  in  some  other  manner  express  their  opinions  or  wishes. 
There  is  nothing  in  these  provisions  implying  that  expenses  may  or 
will  follow  such  notice  by  the  party  notified.  Nor  can  it  be  presumed 
that  parties  so  notified,  or  towns,  may  only  oppose  such  petition.  If 
any  rights  to  act  are  to  be  inferred  from  such  notice,  it  must  be  op- 
tional to  the  party  notified  to  assent  to  or  aid  such  petition  as  well  as 
to  resist  it.  If  expenses  are  implied  in  such  proceedings,  the  right  to 
incur  them  must  follow  either  course  the  town  may  take.  But  as  it  is 
settled,  and  was  so  conceded  on  the  argument,  that  a  town  is  pre- 
cluded from  paying  expenses  to  promote  annexation  upon  such  notice, 
it  would  seem  to  follow  that  under  this  notice  no  action  could  be  taken 
by  the  inhabitants  of  the  town  in  any  way  to  express  its  assent,  but 
only  to  oppose.  This  cannot  be  the  construction  of  the  statute.  The 
notice  must,  therefore,  be  taken  to  be  only  a  notice  to  the  inhabitants 
of  a  town,  for  them  to  take  such  action  as  they  may  by  existing  pro- 
visions of  law,  and  not  as  in  any  way  enlarging  or  extending  the  pow- 
ers or  privileges  of  the  town  as  a  corporation. 

There  is  another  view  of  this  statute,  which  forbids  the  construction 
that  any  rights  are  conferred  upon  the  town.  It  is  evidently  an  act 
framed  for  the  convenient  ordering  of  the  legislative  business,  and  for 
preparing,  before  the  Legislature  meets,  the  service  of  such  notices  as 
the  Legislature  might  find  it  necessary  to  issue  for  the  purpose  of  ob- 
taining proper  information  on  the  questions  presented  upon  petition. 
It  regulates  the  method  in  which  petitions  shall  be  presented,  and  does 
not  increase  or  diminish  the  rights  of  parties  to  be  affected  by  legisla- 
tion on  that  particular  subject.  For  on  all  subjects  with  which  the 
Legislature  may  deal  upon  petition,  it  may  also  deal  of  its  own  motion 
and  without  notice  to  parties,  and  it  is  not  precluded  from  such  action 
by  this  statute. 

These  views  are  confirmed  when  we  consider  the  character  and 
usages  of  the  tribunal  to  which  the  petition,  upon  which  notice  is  to  be 
given,  is  to  be  presented,  and  afford  an  answer  to  the  argument  of  the 
defendants,  that  this  money  is  to  be  expended  in  defence  of  a  suit 
brought  before  the  General  Court,  having  jurisdiction  of  the  premises. 
The  Legislature  is  the  law-making  branch  of   the   government.     It 


326  THORNDIKE   V.   CAMDEN. 

passes  such  laws  as  in  its  judgment  the  public  good  requires.  It  may 
legislate  on  any  subject  within  its  powers,  whethar  called  to  its  atten- 
tion by  petition  or  not.  When  called  to  its  attention  by  petition,  it 
may  act  upon  it  at  once,  or  it  may  seek  further  information  before 
acting.  It  may  do  this  in  many  ways,  at  its  own  bar,  or  through  its 
own  members  by  debate,  or  by  a  special  committee  of  its  members  for 
that  purpose,  or  by  a  standing  committee  to  whom  such  questions  are 
usually  referred.  Such  committee  may  obtain  its  information  either 
from  its  own  investigations,  or  by  hearing  parties  who  present  them- 
selves, or  by  sending  for  persons  and  papers,  under  special  orders  of  the 
Legislature,  and  paying  the  expenses  attending  such  requisitions.  It 
reports  its  decision  to  the  main  body,  in  the  form  of  a  recommendation 
for  its  action,  which  is  passed  upon  after  consideration  and  debate. 
The  committee  is  in  no  sense  a  court ;  there  is  no  final  decision,  there 
is  no  default  in  not  appearing  before  it  upon  the  statute  notice,  and  no 
rights  are  necessarily  lost  by  failing  to  appear.  The  rights  of  parties 
are  not  litigated  before  such  committee,  and  the  hearing  of  parties  be- 
fore it  is  in  no  sense  a  trial.  It  is  simply  an  organ  of  the  body  ap- 
pointing it,  to  obtain  information  upon  which  they  may  act  justly  and 
intelligently. 

The  proceeding  has  no  analogy  to  a  suit  at  law,  and  a  town  has  no 
such  public  duty  to  perform,  as  when  it  is  summoned  to  answer  to  legal 
proceedings  instituted  in  court. 

We  think  it  evident  that  it  was  the  intention  of  this  act,  that  notice 
should  be  given  to  the  inhabitants  of  towns-  of  all  petitions  affecting 
their  interests  for  the  purpose  of  giving  them  an  opportunity  to  take 
proper  action,  and  communicate  their  wishes  on  the  subject  to  the  Leg- 
islature. But  it  is  not  to  be  presumed  from  the  language  of  the  act 
that  it  was  intended  to  arm  towns,  as  corporations,  with  the  power  to 
raise  money  to  prevent,  before  the  Legislature,  any  change  in  their 
boundaries,  or  rights  over  their  territory,  which  it  is  the  constituted 
duty  of  the  Legislature  to  make,  if  the  public  good  requires.  The 
Legislature  might  well  hesitate  to  give  such  power,  not  only  because  it 
might  obstruct  the  action  of  the  legislative  body,  but  be  open  to  great 
abuse,  and  obnoxious  to  a  sound  public  policy. 

We  are  therefore  of  opinion  that  the  injunction  should  issue  as 
prayed  for.  Decree  accordingly.      ^»j^ 

^1/      THORNDIKE  v.   CAMDEN.^^^^^^^t^^'^^*^^^^ 

1889.     82il/e.39.  ^^^  U  ^^^^^^^^^^^ 

Emery,  J.^    This  case  is  presented  by  the  defendants'  exceptions  \j>^ 
to  the  ruling  of  the  presiding  justice  awarding  judgment  for  plaintiff ^^^^ 
on  an  agreed  statement  of  facts.     In  sibmitting  a  case  upon  an  agreed^ 
1  Statement  of  facts  and  argun  ents  omitted.  —  Ed.  / 


lA<^6^ 


THORNDIKE   V.    CAMDEN.  327 

statement,  the  plaintiff  has  the  burden  of  stating  all  the  facts  necessary 
for  the  maintenance  of  his  action.  He  must  not  depend  oii  inferences. 
Omissions  will  be  construed  against  him. 

lu  this  case,  we  must  assume  that  the  plaintiff  was  the  duly  elected 
and  qualified  collector  of  taxes  in  the  defendant  town  for  the  year 
1873;  — that  he  had  a  legal  and  sufficient  warrant  to  collect  a  tax  of 
§316,  legally  assessed  against  a  party  liable  to  taxation  in  said  town, 
and  styled  in  the  warrant,  "  D.  Knowlton  &  Co."  ;  —  that  he  made  no 
effort  to  collect  said  tax  farther  than  to  illegally  permit  them  to  give 
their  note  instead  of  the  money  for  their  tax ;  —  that  he  took  the  note  as 
money,  and  accounted  for  it  as  money  to  the  town  treasurer; — that 
twelve  years  afterward,  in  1885,  the  note  not  having  been  paid,  the 
town  voted  under  proper  articles  in  the  warrant  to  pay  him  S3 00  in 
consideration  of  the  premises,  the  said  sum  to  be  raised  by  assessment. 

Has  the  town  the  power  to  impose  a  tax  for  such  a  purpose? 
Clearly  not,  unless  the  plaintiff's  claim  is  incident  to,  or  connected 
with,  the  exercise  by  tlie  town  of  its  legal  powers.  A  town  is  not  a 
business  or  a  charitable  corporation.  It  is  simply  a  political  organiza- 
tion, created  as  a  convenient  agent  for  the  performance  of  certain 
governmental  duties  and  purposes.  Its  powers  are  almost  entirely 
political,  and  are  properly  limited  to  its  duties.  It  has  only  such  con- 
trol over  the  citizen,  and  his  money  or  property,  as  is  expressly 
granted  to  it,  or  is  necessary  to  the  performance  of  its  duty  to  the 
public.  Indeed,  a  town  is  only  a  trustee  for  the  public.  It  does  not 
_own  the  money  in  its  treasury,  nor  the  municipal  property  generally, 
but^only  holds  them  in  trust  for  the  public,  and  subject  to  public  con- 
trol through  the  legislature.,,  Dillon  3Iun.  Corp.  61;  Merrhoether  v. 
1?arrett^02  U.  S.  472. 

The  narrow  limit  of  the  taxing  power  of  a  town,  and  of  its  power 
over  money  paid  into  its  treasury  from  other  sources  than  town  taxes, 
is  illustrated  by  many  decided  cases.  In  the  absence  of  a  special  stat- 
ute, a  town  cannot  raise  money  for  purposes  of  local  defense  against 
an  invading  enemy.  Stetson  v.  Kenipton,  13  Mass.  272.  Nor  to 
build  places  of  amusement  for  its  inhabitants.  Ibid.  Nor  to  abate 
taxes.  Cooley  v.  Granville^  10  Cush.  56.  Nor  to  celebrate  an  anni- 
versary. Tash  V.  Adanis,  10  Cush.  252.  Not  even  "  Fourth  of  July." 
Hood  V.  Lj/nn,  1  Allen,  103.  Nor  to  provide  uniforms  for  a  local  mil- 
itary company.  Glaflin  v.  Hopkinton,  4  Gray,  502.  Nor  to  obtain  a 
city  or  town  charter.  Frost  v.  Belmont,  6  Allen,  152.  Nor  to  oppose 
division  of  the  town.  Coolidge  v.  Brooklhie,  114  Mass.  592.  West- 
brook  V.  Deering,  63  Maine,  231.  Nor  to  pay  a  private  fire  company. 
Greenongh  v.  Wakejield,  127  Mass.  275.  Nor  to  build  a  court  house. 
Bachelder  v.  Epp)ing,  28  N.  H.  354.  Nor  to  build  a  county  jail. 
Drew  V.  Davis,  10  Vt.  506.  Nor  to  build  a  bridge  in  another  town. 
Concord  v.  Boscaioen,  17  N.  H.  465.  Nor  to  aid  a  private  cemetery 
association.  Liiques  v.  Dresdeii,  77  Maine,  186.  It  cannot  divide 
among  its  inhabitants  money  received  from  the   state.     Hooper  v. 


328 


THORNDIKE   V.    CAMDEN. 


Umery,  14  Maine,  375.  Nor  assess  a  tax  to  pay  back  money  volun- 
tarily paid  into  its  treasury,  to  aid  in  relieving  the  town  from  military 
draft.     Perkins  v.  Milford,  59  Maine,  315. 

Within  its  sphere,  a  town  may  exercise  some  discretion  as  to  what 
claims  to  pay,  or  to  contest.  In  the  matter  of  schools,  roads,  paupers, 
fire  engines,  town-houses,  &c.,  matters  which  towns  are  created  to 
care  for,  the  town  may  determine  what  claims  on  these  accounts  it  will 
pay.  The  claim  in  suit,  however,  arises  out  of  matters  which  are  not 
entrusted  to  the  control  of  town-meetings.  It  concerns  the  collection 
of  public  taxes.  The  statute  (R.  S.,  c.  3,  §  46)  empowers  a  town  to 
raise  money  for  specified  purposes,  —  that  is,  to  fix  and  order  by  vote 
the  amount  to  be  assessed  and  collected  for  proper  town  charges,  — 
but  there  the  discretionary  power  of  the  town  seems  to  end.  The 
statute  gives  it  no  control  over  the  assessment  or  collection  of  any 
taxes.  It  is  true,  the  statute  requires  the  town  to  appoint  the  assessors 
and  collectors  of  all  state,  county  and  town  taxes  to  be  levied  within 
its  territory,  but  the  town  does  this  as  tlie  political  ngent  of  the  state. 
The  appointment  could  have  been  entrusted  to  any  other  agency. 
These  officers  are  not  corporate  agents.  They  are  public  otRcers, 
owiiig  to  the  public  and  not  to  the  town  alone,  the  duties  imposed  by 
statute.  Only  their  appointment  comes  from  the  town.  Their  author- 
itj'  is  from  the  statute,  and  they  cannot  be  controlled  by  the  town  in 
the  execution  of  that  authority.  Desty  on  Taxation,  508,  685.  State 
V.  Walton,  62  Maine,  106. 

No  vote  of  the  town  can  relieve  the  assessors  of  any  part  of  their 
statute  duty ;  nor  can  such  vote  control  their  action  in  any  defall. 
The  town  cannot  by  vote  increase,  diminish  or  vary  the  duties  which 
the  tax  collector  owes  to  the  public,  nor  relieve  him  in  case  of  his 
neglect,  except  in  the  very  few  cases  where  the  statute  so  pro- 
vides. There  is  an  implication,  perhaps,  in  R.  S.,  c.  6,  §  173,  that 
the  town  may  relieve  a  collector  who  has  made  a  fruitless  arrest  after 
one  year.  In  general,  the  negligent  collector  is  dealt  with,  not  by 
the  town,  but  by  other  public  officers  clothed  with  authority  for  that 
purpose. 

The  assessors  are  authorized  by  statute  in  certain  contingencies  to 
take  his  tax  warrant  from  him.  §§  147,  149.  The  state,  county  and 
town  treasurers  may  each  issue  his  warrant  of  distress  against  a  delin- 
quent or  slothful  collector.  §§  151,  152,  158.  All  these  officers  pro- 
ceed, not  under  any  vote  of  the  town  but  independent  of  it  and  under 
statute  authority.  It  would  be  their  duty  to  act,  when  the  occasion 
arises,  even  in  spite  of  a  vote  of  the  town.  When  a  tax  collector  has 
once  received  a  legal  tax  warrant,  he  becomes  chargeable  with  the 
whole  amount  of  the  tax,  state,  county  and  town.  He  must  account" 
in  money  to  each  treasurer  for  the  amount  ordered  to  be  paid  to  him. 
Fake  v.  Whipple,  39  Barb.  339  ;  Gorliam  v.  Hall,  57  Maine,  58." 
This  liability  is  not  a  private  debt  due  to  the  town  as  a  corporation 
which  the  corporation  liiay  release.     It  is  an   official  liability  to^He" 


THORNDIKE   V.   CAMDEN.  329 

public,  which  he  can  acquit  himself  of,  only  by  executing  his  warrant. 
If  he  neglects  to  execute  his  warrant,  his  liability  to  pay  to  the  treas- 
urers the  amounts  due  them,  is  as  living  and  binding  as  if  he  had  col- 
lected the  money.  His  payments  to  the  treasurers  are  general,  on 
account  of  the  whole  sum  ordered  to  be  paid  each,  and  not  particular, 
on  any  individual  tax.  His  warrant  comma^nds  him  to  pay  over  a  cer- 
tain  gross  amount,  not  any  particular  taxes,  to  each  treasurer.  Any 
money  he  olHcially  pa3"s  the- treasurer,  he  pays  on  account  of,  and  to 
diminish  this  gross  sura,  this  liability,  it  ne  De" "dilatbt^V,  M^  oweT 
money  or  property "Cfin  lie  taken  on  a  treasurer's  warrant  of  distress, 
and  no  vote  of  the  town  can  restrain  the  treasurer  or  restore  the 
money."  If  he  be  dilatory  in  collecting,  and  voluntarily  pays  his  own 
money'to  the  treasurer  without  waiting  for  the  warrant  of  distress  to 
be  issued,  he  only  does  his  official  duty,  only  pays  what  he  was  bound 
to  pa}',  and  could  be  compelled  to  pay.  If  no  vote  of  the  town  can 
restrain  the  treasurer  from  compelling  payment,  it  would  seem  that  no 
vote  of  the  town  can  force  him  to  restore  what  has  been  voluntarily 
paid  him  by  the  collector  on  account  of  his  official  liability.  In  neither 
case,  does  the  collector  acquire  any  right  to  repayment  from  his  subse- 
quent omission  to  collect  of  the  tax-payer. 

Without  the  execution  or  revocation  of  his  warrant,  the  tax  collec- 
tor seems  to  have  no  claim  in  law,  morals,  or  good  conscience,  either 
to  be  excused  from  failure  to  collect,  or  to  receive  out  of  the  town 
treasury  sums  he  has  paid  under  his  liability  though  in  anticipation  of 
collection.  Such  a  claim  on  its  face,  whatever  the  particular  facts, 
does  not  come  within  the  purview  of  town-meetings.  If  a  town  has 
no  power  to  raise  money  from  taxes,  to  restore  a  gift  voluntarily  made 
to  the  town  by  one  of  its  citizens,  as  was  held  in  Perkins  v.  Milford^ 
59  Maine,  315,  much  less  has  it  power  to  raise  money  from  taxes,  to 
restore  to  a  public  officer  money  he  has  paid  to  the  town  treasurer 
under  an  official  obligation  to  do  so. 

This  claim  is  that  of  a  public  officer  to  be  compensated  for  a  loss 
suffered  by  his  neglect  of  his  public  duty.  AVe  nowhere  find  any 
authority  for  a  town  to  make  such  compensation.  For  a  town  to 
make  such  compensation  to  a  delinquent  collector,  or  to  otherwise 
relieve  him,  would  be  in  effect  abating  the  taxes  he  omitted  to  collect. 
A,  town  has  no  power  to  abate  a  tax.  Cooley  \.  Granville,  10  Cush. 
56.  The  only  tribunals  authorized  to  grant  abatements,  are  the  board 
of  assessors,  and  the  appellate  tribunal,  the  county  commissioners. 
A  town-meeting  has  no  authority  to  review,  modify  or  reverse  the 
judgment  of  the  assessors  as  to  the  persons  or  property  to  be  taxed. 
Nor  has  it  any  authority  to  excuse  a  man  from  paying  his  tax,  or  to 
refund  to  him  a  legal  tax  once  paid.  To  concede  that  a  town  can  di- 
rectly or  indirectly  abate  a  tax  by  vote  in  town-meeting,  is  to  concede 
the  power  of  a  town  to  determine  who  shall  pay  taxes,  and  who  shall 
be  exempt,  and  the  consequent  power  to  place  the  public  burdens 
wholly  on  such  citizens,  as  thp  ^lajority  shall  single  out  for  that  purpose. 


330  OSGOOD   V.    CONWAY. 

This  court  has  emphatically  held  that  a  town  has  no  such  power,  and 
that  the  legislature  cannot  confer  it.     Breiuer  Brick  Co.  v.  Brewer, 
62  Maine,  62.     If  tlLejtQwjn_caQPot  abate  the  tax  it  certainly  canuot_ 
excuse  the  collector  from  collecting  it.    The  town  cannot  do  indirectly 
what  it  has  no  direct  power  to  do. 

The  agreed  statement  of  facts  does  not  disclose  any  legal  excuse  for 
the  collector's  failure  to  collect  the  tax  in  question.  He  had  no  concern 
with  the  ownership  of  the  property,  nor  with  the  propriety  of  the  tax. 
It  is  said  in  the  agreed  statement  that  the  property  meant  to  be  taxed, 
belonged  to,  and  was  in  the  name  of  "D.  Knowlton  Company,"  a  corpora- 
tion, there  being  no  such  party  as  "  D.  Knowlton  &  Co."  It  is  also  said, 
however,  that  "  D.  Knowlton  &  Co."  gave  a  note  for  the  tax,  and  that 
afterward  "  D.  Knowlton  &  Co."  became  insolvent.  There  must 
therefore  have  been  a  party  called,  "  D.  Knowlton  &  Co."  and  it  was 
unquestionably  tlie  same  party  as  "  D.  Knowlton  Company."  The 
variation  was  simply  in  the  name  of  the  same  party,  and  too  slight  to 
raise  any  question  of  identity.  The  agreed  statement  negatives  the 
possibility  of  any  other  party.  There  was  nothing  in  the  matter  of 
name,  to  hinder  the  collector  a  moment.  Farnsworth  Co.  v.  Randy 
65  Maine,  19.     The  validity  of  the  tax  was  not  questioned. 

We  cannot  see  any  ground  upon  which  to  sustain  the  vote  of  the 
town  directing  the  assessment  of  a  tax  upon  its  citizens  to  pay  this 
claim.  The  law  has  not  made  town-meetings  the  courts  of  last  resort 
in  a  matter  so  highly  important  to  every  citizen  as  the  prompt  collec- 
tion of  public  taxes.  It  does  not  permit  the  bestowal  of  public  money 
upon  a  delinquent  officer,  by  a  friendly  majority  in  a  town-meeting. 
The  limited  power  of  towns  over  public  money  was  well  stated  in 
Westbrook  v.  Deering,  63  Maine,  231.  The  tax-payer  is  by  no  means 
at  the  mercy  of  local  majorities.  The  law  carefully  guards  his  rights 
and  immunities,  and  only  permits  him  to  be  taxed  for  lawful  public 
purposes.  It  gives  the  courts  power  to  afford  him  ample  protection 
against  the  inconsiderate  unauthorized  actions  of  towns. 

i'TN  Exceptions  sustained,  r,    j^ 

^      OSGOOD  V.  CONWAY."    My^*^^'''^^^^^'^ 

1891.    67  iV.  H.  100.         ^  ^.^^y^"^^^^ 

Bill  in  equity,  by  residents  and  tax-payers  in  Conway,  against  the    /vs 
town,  its  selectmen,  collector,  and  treasurer,  for  an  injunction  restrain-  ^^a^ 
ing  the  defendants  from  assessing,  collecting,  or  paying  over  money  to     V 
the  representatives  of  the  town  in  the  legislature,  for  the  purpose  of  "^ 
reimbursing  them  for  expenses  incurred  in  defeating  a  bill  introduced    ^^^ 
into  the  legislature  at  the  January  session,  1891,  for  a  division  of  the 
town.     The  representatives  of  the  town  employed  counsel  and  pro-  -^ 


KELSO   V.   TEALE.  331 

cured  the  attendance  of  witnesses,  without  autliority  from  the  town,  in 
opposition  to  the  measure.  At  the  annual  town-meeting,  held  on  the 
second  Tuesday  of  March,  1891,  after  the  expenses  had  been  incurred 
in  opposition  to  the  division  of  the  town,  a  vote  was  passed  appro- 
priating a  sum  of  money  to  pay  for  those  expenses. 

Per  Curiam.  [Doe,  C.  J.]  It  is  unnecessary  to  consider  the  ques- 
tion whether  the  town,  as  a  corporation,  had  the  power  to  employ 
agents  to  represent  it  before  a  legislative  committee  in  opposition  to 
the  proposed  change  in  its  territorial  limits.  If  the  existence  of  such 
a  power  is  admitted,  the  parties  who  incurred  the  expenses  in  question 
were  not  the  authorized  agents  of  the  town  for  that  purpose.  As  rep- 
resentatives to  the  legislature  they  had  no  authority  to  bindthe  town 
by  contract.  JNor  does  it  appear  that  the}^  assumed  to  act  in  behalf  of 
the  town.  As  citizens  of  the  town  they  were  interested  in  the  pro- 
posed legislation,  and  there  is  nothing  in  the  reserved  case  indicating 
that  they  were  not  engaged  in  the  defence  of  their  individual  interests. 
But  if  their  services  cau^ia,„anY  view,  be  said  to  be  beneficial  to 
the  town  in  its  corporate  capacity,  they  were  rendered  gratuitously, 
and  imposed  upon  it,  at  most,  only  a  moral  obligation  to  pay  for  them. 
French  yTBentoJ^y  44  N.  H.  28 ;  Butler  v.  Charlestown,  7  Gray,  12. 
The  vote  of  the  town  appropriating  money  to  pay  for  these  services,  if 
deemed  equivalent  to  a  promise  to  pay  for  them,  did  not  bind  the 
town,  since  it  was  not  supported  by  a  legal  consideration.  A  promise 
to  pay  for  services  voluntarily  rendered  without  the  request  or  author- 
it}^  of  the  promisor  is  not  enforceable,  although  they  may  be  bene- 
ficial and  valuable  to  him.  Wilson  v.  Edmonds^  24  N.  H.  517;  Hall 
V.  Hall,  44  N.  H.  293,  296;  Lebanon  v.  Griffin,  Ab  N.  H.  558;  Bux- 
ton V.  Cliesterfiekl,  60  N.  H.  357 ;  Kerd  v.  Rand,  64  N.  H.  45 ; 
Earle  v.  Coburn,  130  Mass.  596;  Bartholomew  v.  Jackson,  20 
Johns.  28. 

As  the  town  did  not  become  legally  liable  to  pay  for  the  services 
under  either  an  express  or  an  implied  contract,  the  imposition  of  a  tax 
upon  its  citizens  for  that  purpose  would  be  unauthorized  and  illegal. 

Jr^  Y  ^  Decree  for  the  plaintiffs. 

KELSO  V.  TEALE.  ^^         \ 

;\^  ^  1895.     106  Cal  477. 

/*^        Belcher,  C.^     This  is  an  appeal  from  a  judgment  of  the  superior 

court  of  Los  Angeles  county,  directing  the  issuance  of  a  peremptory 

^  ''^\njtoX mandate  commanding  the  appellant,  as  city  auditor  of  tlie  city 

of  Los  Angeles,  to  number  and  record  a  demand  which  had  been  duly 

■j-/^approved  and  allowed  by  the  board  of  directors  of  the  Los  Angeles 

Public  Library. 

'  Part  of  tlie  opinion  is  omitted.— Ed. 
1 4^,   .  _    _  '"      ■ 


332 


KELSO   V.   TEALE. 


The  charter  of  the  city  of  Los  Angeles  makes  provisions  for  a  pub- 
lic library,  which  is  to  be  managed  by  five  directors,  known  as  the 
"board  of  directors  of  the  Los  Angeles  Public  Library."     Stats.  1889, 

art.  VIII,  p.  456. 

By  section  86  the  board  is  given  power,  among  other  things,  to  ap- 
point a  librarian  and  necessary  assistants,  and  such  other  employees 
as  may  be  necessary,  to  control  and  order  the  expenditure  of  all  mone3'S 
at  any  time  in  the  library  fund,  and  order  the  drawing  and  payment  of 
all  moneys  out  of  said  fund  for  such  expenditures  and  liabilities  as  are 
authorized,  subject  to  the  general  provisions  for  the  payment  of  de- 
mands on  the  city  treasurer  contained  in  article  XXI,  and  generally  to 
do  all  that  may  be  necessary  to  carry  out  the  spirit  and  intent  of  the 
charter  in  establishing  a  public  library  and  reading-room. 

The  demand  in  question  was  for  two  hundred  dollars,  which  sum,  by 
a  resolution  passed  June  6,  1893,  was  appropriated  by  the  board  of  li- 
brary directors  on  account  of  the  expegsg^of  a  delegate  representing 
the  library  at  the  World's  Congress  of  Librarians  and  to  the  American 
Library  Association  Conference,  to  be  held  from  the  10th  to  the  24th 
of  July^J^S^,^ 


Appellant  further  contends  that,  under  the  provisions  of  the  charter, 
the  directors  of  the  library  had  no  right  to  make  such  an  appropriation 
from  the  library  funds  as  that  here  in  question.  And  it  is  said  :  "  The 
benefits  to  be  derived  by  the  tax-payers  and  patrons  of  the  library  from 
what  might  be  learned  by  a  delegate  to  a  congress  of  librarians  are  too 
remote,  too  speculative,  too  chimerical,  to  make  the  expenses  of  such 
a  delegate  a  legal  charge  upon  the  public  funds." 

But  the  question  of  benefits  to  the  library  and  its  patrons  from  an 
expenditure  like  that  here  involved  was  one  to  be  determined  by  the 
directors  in  the  first  instance  ;  and,  it-tji^.e  could  be  any  state  of  _cir;^ 
cumstanccs  under  which  such  an  expenditure  would  l)e  authorized,  it 
nni.^t  be  presumed  that  such  a  state  was  shown,  and  w:ts  considered 


and  acted  upon  by  the  directors  when  they  made  the  appropriation. 
The  board  was  authorized  "to  control  and  order  the  expenditure  of 
all  moneys  at  any  time  in  the  library  fund,"  and  "generally  to  do  all 
that  may  be  necessary  to  carry  out  the  spirit  and  intent  of  this  charter 
in  establishing  a  public  library  and  reading-room." 

In  view  of  the  action  of  the  board  and  of  the  court  below,  we  can- 
not say  that  the  appropriation,  under  the  circumstances  shown,  was  not 
justifiable  and  proper. 

No  other  points  are  made,  and  in  our  opinion  the  judgment  should 
be  affirmed. 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  is  af- 
firmed. 


'"     POLICE  PENSION   FUND   ASSOCIATION   V.   WALTON.  333 

r>^  COMMONWEALTH  ex  rel.  CITY  OF  PHILADELPHIA  POLICE 
. .  u^  PENSION  FUND  ASSOCIATION  v.  WALTON. 

1897.     182  Pa.  373. 


Sterrett,  J.i  In  the  relator's  petition  for  the  alternative  writ,  it 
avers  among  other  things  that  it  is  a  coiporation,  created  by  and  ex- 
isting under  the  laws  of  this  state,  whose  objects  as  defined  by  its 
charter  are  to  accumulate  a  fund  from  the  dues  of  its  members,  from 
legacies,  bequests,  gifts  and  other  sources,  with  which  to  pay  pensions 
to  members  of  the  association  and  to  families  of  deceased  members  ; 
that  its  membership  is  twenty-three  hundred  and  eighty-six  (2386), 
including  the  director  of  public  safety,  the  superintendent  of  police, 
all  the  pohce  captains  and  lieutenants,  two  iiundred  and  thirty-six 
(236)  sergeants,  two  thousand  and  thirteen  (2013)  patrolmen,  sixty- 
seven  (67)  patrol  and  van  drivers  and  thirty  (30)  employees  of  the 
electric  bureau;  that  it  pays  pensions^to  members  who  have  become 
permanently  incapacita,tej[  by  rejiaon  of.  injuries  received  in  the  per- 
formance_of  actual  dut^^o  members  who  have  served  fifteen  j^ears, 
whatever  may  be  the  cause  of  incapacity  (excepting  cases  in  which  it 
results  from  the  member's  own  vicious  habits),  to  members  who  have 
served  twenty-five  years,  and.  to  the  widow  or  children  or  dependent 
parents  oF~a  hiember  killed  in  the  discharge  of  his  duty,  etc. ;  that  in 
1895  an  ordinance  was  passed  by  the  councils  of  said  city  of  Philadelphia 
and  approved  by  the  mayor  appropriating  ten  thousand  (§10,000)  dollars 
for  the  charter  purposes  of  said  Pension  Fund  Association ;  that  in 
January  of  that  year  a  warrant  for  the  payment  of  said  sum  was  duly 
drawn  by  the  directoi;  of  the  department  of  public  safety  and  presented 
to  the  then  city  controller,  who  refused  to  countersign  the  same  ;  that 
his  successor  in  office,  —  the  present  controller,  —  being  unwilling  to 
overrule  the  decision  of  his  predecessor,  declined  to  countersign  the  war- 
rant ;  and  praying  that  an  alternative  mandaiji.jis  issue,  etc. 

In  the  city  controller's  return  to  the  alternative  writ  all  the  facts  re- 
cited in  the  petition  are  virtually  admitted.     The  only  reason  he  gives 
for  his  refusal  to  countersign  the  warrant  is  that  the  appropriation  was 
to  an  association  or  corporation  ;  and  is  in  violation  of  law  and  of 
section  7  of  article  IX,  of  the  constitution  which  reads  thus:   "Thej  ^ 
general  assembly  shall  not  authorize  any  county,  city,  borough,  town-     Jj^jja^v  t'^ 
ship  or  unincorporated  district  to  become  a  stockholder  in  any  com-/  ^^        ^ 
pany,  association  or  corporation,  or  to  obtain  or  appropriate  moneyf       ^  i 

for  or  to  loan  its  credit  to  any  corporation,  association,  institution  on  ' 

individual." 

In  support  of  the  demurrer  to  this  return  the  following  reasons  were 
assigned :  (1)  the  return  admits  facts  which  show  that  the  relator  is 

~  ,  1  Arguments  omitted.  —  Ed. 


334 


POLICE   PENSION    FUND    ASSOCIATION   V.   WALTON. 


rXjJTMM 


entitled  to  relief;  (2)  it  discloses  no  legal  ground  for  refusal  to  counter- 
sign the  warrant,  and  (3)  the  respondent  has  neither  set  up  nor  offered 
any  matter  or  thing  to  defeat  the  right  of  the  relator  as  disclosed  by 
its  petition. 

The  refusal  of  the  court  below  to  sustain  the  demurrer,  and  the 
entry  of  judgment  thereon  for  the  defendant,  constitute  the  subjects 
of  complaint  in  this  appeal. 
WW4^  It  is  unnecessary  to  even  outline  the  history  of  the  constitutional 
prohibition  above  quoted.  It  had  its  origin  in  the  amendment  of  1857, 
which  was  prompted  by  the  growing  evils  of  reckless  and  extravagant 
■  jy,.«vHJ"iiicipal  subscriptions  to  railroads,  plank  roads,  etc.  Those  evils 
were  so  aggravated  that  it  became  necessary  to  interfere  and  prevent 
by  a  constitutional  prohibition  all  future  pledges  of  municipal  faith 
and  property  for  such  purposes  under  the  sanction  of  the  legislature, 
which  alone  possessed  the  power  to  grant  the  proper  authority :  Rail- 
road V.  PJdladeljjhia,  47  Pa.  193;  Speer  \.  School  Directors^  bO  Vo.. 
163;  Brooke  v.  Philadelphia,  162  Pa.  126. 

In  Speer  v.  School  Directors,  snpra,  it  was  held  ' '  that  money  paid 
to  save  a  community  from  a  (military)  draft  is  not  obtained  for  a 
party  or  individual,  but  is  a  direct  appropriation  to  a  public  purpose 
and  that  raising  money  by  the  ordinary  powers  of  borrowing  and  tax- 
ation for  a  common  purpose,  affecting  the  interest,  happiness  and  wel- 
fare of  a  community,  is  not  obtaining  money  or  loaning  credit  to  any 
party  within  the  terms  of  the  amendment." 

It  is  evident  from  an  examination  of  our  cases  on  the  subject,  that 
no  strictly  legitimate  municipal  purpose  was  intended  to  be  prohibited. 
The  evident  purpose  of  the  prohibition  was  to  confine  the  municipal- 
ities to  the  objects  for  which  they  were  created  and  to  restrain  the 
^^^.^.-w-r  legislature  from  authorizing  any  perversion  of  them.    By  the  act  of 
^  (jJ^A^^-'^^Iarch  17,  1789,  wliich  appears  to  be  still  in  force,  the  city  councils  of 
/Philadelphia  "  Jiave  full  power  and  authority  to  make,  ordain  and  es- 
/  tablish  such  and  so  many  laws,  ordinances  and  regulations  as  shall  be 
/  necessary  for  the  welfare  and  comfort  of  the  city."     We  have  no  right 
I    to  assume,  nor  is  there  anything  from  which  it  may  be  fairly  inferred 
that  the  constitutional  prohibition  in  question  was  intended  to  revoke 
or  curtail  any  of  the  powers  or  authorities  with  which  the  city  councils 
^  were  theretofore  invested  by  the  comprehensive  grant  above  quoted. 
It  is  not  even  suggested  that  a  reasonable  appropriation  by  councils  for 
the  creation  or  maintenance  of  a  police  ])ension  fund  is  not  an  appro- 


M 


j^v*/*itW^j  prlation  to  a  strictly  municipal  use,   and  "  necessary  for  the  wi 


If 


tMi;ire 


and  comfort  of  the  city."  A  judiciously  administered  pension  fund  is 
doubtless  a  potent  agency  in  securing  and  retaining  the  services  of  the" 
most  faithful  and  efficient  class  of  men  connected  with  that  arm  of 
the  municipal  service  in  which  every  property  owner  and  resident  of  tlie* 
city  is  most  vitally  interested.  Reasons  in  support  of  this  proposition 
need  not  be  stated  in  detail.  They  are  such  as  readily  suggest  them- 
selves in  every  reflecting  mind. 


KELLY   V.   PITTSBUKG. 


335 


But,  aside  from  the  general  charter  authority  of  councils  to  make 
such  appropriations,  and  aside  from  any  question  of  expediency  or 
propriety  in  their  doing  so,  this  case  might  well  be  disposed  of  on  the 
ground  that  the  constitutional  prohibition  relied  on  by  the  defendant 
is  inai)plicable  to  councils.  In  Indiana  Co.  v.  Agricultural  Society, 
85  Pa.  357,  this  court  held  that  the  section  in  question  "deals  only 

with  legislative  power That  power  is  thereby  limited  and  re- \)(is^  CfiWX' 

stricted.  It  declares  what  the  legislature  '  shall  not '  do.  It  annuls 
nothing  that  it  had  done.  It  forbids  such  legislation  thereafter.  It 
struck  down  no  law.     Its  prohibitions  were  wholly  prospective."    It  is  "tfi^JL  Ou<J^*" 


not  pretended  that  the  ordinance  in  question  was  enacted  in  pursuance 

of  any  legislation  passed  since  the  adoption  of  the  constitutional  \^xo- 

hibition.     It  therefore  follows  that  the  latter  has  no  application  here. 

There   is   no    merit  in    the  objection    that  councils  delegated    the 


^ 


ii>;i  ()! 


distri1)ut 

sioii  Fund  .Vssociation, 


the  sum  a[)pr(j[)i'i:ite(l  to  the  "Philadelphia  Pol 


ce  Pen-/ 
If  they 


we  ha^  e  seen,  the  association  was  incorporated  for  the  express  pur-       ^^"^""^ 
pose  of  administering  such  funds  on  just  and  equitable  principles.     If  \-\\  .  ^-o—.,"^ 
it    should    attempt  to  divert  any  of  the  funds  to  improper  purposes       Ca^vJ^IajU 
ample  redress  could  be  had  by  application  to  the  proper  court.  \J^  ■ 

It  follows  from  what  has  been  said  that  the  demurrer  should  have 
been  sustained,  and  a  peremptory  writ  awarded  as  prayed  for. 

Judgment  reversed,  and  judgment  is  now  entered  in  favor  of  the 
plaintiff  on  the  depiurrer,  and  peremptory  writ  awarded  as  prayed  for. 


instead  of  distributing  it  themselves 
were  satTsfied,  as  they  doubtless  were,  that  the  distribution  of  the  fund 
would  be"  better  effected  through  the  agency  of  the  association  than  by 
anagcDey  of  their  own  creation,  they  had  a  right  to  so  provide.     As 


■W 


y^<\j^     COMMONWEALTH  ex  rel.  KELLY  v.  PITTSBURG. 


1897.     183  Pa.  202. 


The  relators  secured  an  appropriation  from  councils  of  the  city  of 
Pittsburg  for  a  survey  for  a  ship  canal  from  the  Ohio  River  to  Lake 
Erie.  They  then  made  contracts  and  expended  money  on  faith  of  the 
appropriation.  The  controller  refused  to  authorize  a  warrant,  on  the 
ground  that  the  appropriation  was  illegal.  This  is  a  petition  torman- 
dam?/s_to  compel  the  controller  to  certify  a  warrant.^  '*— — " 

Per  Curiam.  .  .  .  The  appropriation  was  a  very  reasonable  one  ;  and 
the  purpose  for  which  it  was  made  was  certainly  not  foreign  to  the 
material  interests  and  general  prosperity  of  the  municipality,  but  quite 
the  contrary.     "We  are  therefore  of  opinion  there  was  no  error  in  hold- 

^This  short  statement  is  abstracted  from  the  opinion  of  the  lower  court.  An  ex- 
tract from  the  opinion  of  the  Supreme  Court  only  is  given. — Ec 


1^1 


V-l 


— ^ 


T 


"*s4i^it- 


336  WATERS   V.   BONVOULOIPv. 

ing  that  councils  had  the  power  to  make  the  appropriation,  and  that 
good  faith  to  the  relators  and  others  who  acted  in  reliance  thereon  re- 
quires that  the  sum  thus  appropriated  should  be  paid. 
Decree  affirmed  and  appeal  dismissed  at  appellants'  costs. 


WATERS  V.  BONVOULOIR.  ^^ 


1899.     172  Mass.  286. 


Field,  C.  J.     This  is  a  petition  brought  under  Pub.  Sts.  c.  27,  §  129, 


\)^  ten  taxable  inhabitants  of  the  city  of  Holyoke  to  restrain  the  de-  '^B^ 
fendant  as  city  treasurer  from  pajnng  money  out  of  the  treasury  of  the) 
city  in  accordance  with  an  appropriation  of  five  hundred  dollars,  made     "^ 
on  the  recommendation  of  the  mayor  by  the  board  of  aldermen,  by  a    ^* 
vote  of  16  yeas  to  5  nays.     The  appropriation  was  from  the  contingent 
fund  to  defray  the  expenses  of  a  committee  consisting  of  the  ma3'or 
and  four  aldermen  in  attending  a  convention  of  American  Municipali- 
ties at  Detroit,  Micliigaii",'^vheFe  subjects  pertaining  to  tEe"administra^ 
tion  of  cities  were  to  be  discussed,  and  which  the  city  of  Holyoke  had 
received   an    invitation    to    attend.     This   convention  was   under  the 
charge  of  the  League  of  American  Municinalities,  whose  constitution 
provided  that  its  objects  were  :   "  First,  the  perpetuation  of  the  organ- 
ization as  an  agency  for  the  co-operation  of  American  cities  in  the 
practical  study  of  all  questions  pertaining  to  municipal  administration  ; 
secondly,   the   holding  of  annual   conventions   for   the  discussion  of 
contemporaneous    municipal    affairs ;    thirdly,  the   establishment   and 
maintenance  of  a  central  bureau  of  information  for  the  collection,  com- 
pilation, and  dissemination  of  statistics,  reports,  and  all  kinds  of  in- 
formation relative  to  municipal  government." 

The  charter  of  Holyoke  is  St.  1896,  c.  438;  the  last  part  of  §  13  of 
that  chapter  is  as  follows  :  "  The  board  [of  aldermen]  shall,  so  far  as 
is  not  inconsistent  with  this  act,  have  and  exercise  all  the  legislative 
powers  of  towns  and  of  the  inhabitants  thereof,  and  shall  have  and  ex- 
ercise all  the  powers  now  vested  by  law  in  the  city  of  Holyoke  and  in 
the  inhabitants  thereof,  as  a  municipal  corporation,  and  be  subject  to 
all  the  liabilities  of  city  councils,  and  of  either  branch  thereof,  under 
the  general  laws  of  the  Commonwealth,  and  it  may  by  ordinance  pre- 
scribe the  manner  in  which  such  powers  shall  be  exercised.  Its  mem- 
bers shall  receive  no  compensation  for  their  services  as  members  of  the 
board  of  aldermen,  or  of  anj'  committee  thereof."  Section  14  is  as 
follows:  "  Neither  the  board  of  aldermen  nor  any  member  or  commit- 
tee thereof  shall  directly  or  indirectly  take  part  in  the  employment  of 
labor,  the  making  of  contracts,  the  purchasing  of  materials  or  supplies, 
the  construction,  alteration,  or  repairs  of  any  public  works,  buildings, 
or  other  property,  or  the  care,  custody,  or  management  of  the  same  ;  or 


^j^;«^  -i^U  u  '«- 


*     '■'  ^'-^  '  -     Q.  1 


WATERS   V.   BONVOULOIR.  337 

in  the  conduct  of  any  of  the  executive  or  administrative  business  of  the 
city,  or  in  the  expenditure  of  public  money,  except  as  herein  otherwise 
provided  and  except  such  as  may  be  necessary  for  the  contingent  and 
incidental  expenses  of  the  board  of  aldermen ;  nor  in  the  appointment 
or  removal  of  any  officers  except  as  is  herein  otherwise  provided.  But 
nothing  in  this  section  contained  shall  affect  the  powers  or  duties  of  the 
board  in  relation  to  city  aid  to  disabled  soldiers  and  sailors  and  to  the 
families  of  those  killed  in  the  Civil  War."  Section  23  is  as  follows  :  "Xo 
member  of  the  board  of  aldermen  shall,  during  the  term  for  which  he  is 
elected,  hold  any  other  office  in  or  under  the  city  government,  have  the 
expenditure  of  any  money  appropriated  b}'^  the  board  of  aldermen, 
or  act  as  counsel  in  any  matter  before  the  board  of  aldermen  or  any/ 
committee  thereof ;  and  no  person  shall  be  eligible  for  appointment! 
to  any  municipal  office  established  by  the  board  of  aldermen  during  any 
municipal  year  within  which  he  was  an  alderman,  until  the  expiration  of 
the  succeeding  municipal  j^ear." 

The  question  is  whether  the  appropriation  of  five  hundred  dollars 
from  the  contingent  fund  t~pay  the  expenses  of  the  committee  to  the 
l!uuveuUun  of  the  ATnericnn  ^Municipalities  at  Detroit,  is  authorized  by 
xhe  generalTaws  with  reference  to  towns  and  cities,  or  by  the  charter 
of  ihe  cii}'  of  Holyoke.  Pub.  Sts.  cc.  27  and  28,  and  the  amendments 
thereof,  define  the  powers  of  towns  and  cities,  and  city  councils.  The 
appropriation  shown  in  the  present  case  is  not  for  the  payment  of  "  ne-  V-^w.  ,  ..... 
cessary  charges"  within  the  meaning  of  Pub.  Sts.  c.  27,  §  10.  Neces-|,,  ,  .dw'o.,^^^ 
sary  charges  are  coinlm-d  to  matters  in  which  a  town  or  city  has  a  duty  , 
to  perform,  an  interest  to  protect,  or  a  right  to  defend.  Minot  x.  \ 
West  Eoxhnry,  112  Mass.  1.  Coolidge  v.  J^rookJine,  114  Mass.  592. 
SpaiddingY.  Peahodij,  153  Mass.  129.  Sicift  v.  Falmouth,  167  Mass. 
115. 

Pub.  Sts,  c.  28,  §  13,  is  as  follows :  "The  city  council  of  a  city  may, 
by  a  yea  and  nay  vote  of  two  thirds  of  the  members  of  each  branch 
thereof  present  and  voting,  appropriate  money,  not  exceeding  in  any 
one  year  one  fiftieth  of  one  per  cent  of  its  valuation  for  the  current  i   ,  S-*^ 

year,  for  armories  for  the  use  of  military  companies,  forjhe  celebra,H    '  "•'*^*°*^ 

tion  of  holidays,  _and  for  other  public  purposes."     It  is  contended  thatj  ^^ 

the  appropriation  shown  m  the  present~case  is  for  "  other  public  pur-     •'       ' 
poses,"  within  the  meaning  of  this  section  of  the  statutes.     The  ap- 
pointment of  a  committee  "to  represent  the  city  of  Holyoke  at  the 
Convention  of  American  Municipalities  to  be  held  at  Detroit,  Mich., 
from  August  1st  to  4th,  inclusive,"  does  not  seem  to  be  for  any  distinct    '^^'^'^^jfr^.  * 
public  purpose  within  the  meaning  of  the  charter  of  the  city  or  of  the       V^'^^         j 
general  laws.     The  purpose  apparently  is  to  educate  the  committee  i^*'^  '  '     "  ' 
generally  with  reference  to  all  questions  pertaining  to  municipaladM 
ministration  anywhere. '  It  is  not  confined  to  the  ascertainment  of  faet.s  • 
for  the  information  of  the  hoard  of  aldermen  of  tlie  city  of  Ilolvoke  \ 
con^rning  questions  actually  pending   before  the  board.     There  is'     .... 
nothing  in  the  statutes  of  the  Commonwealth  which  authorizes  the  city      '      --.-._ 

V  ( 


<{.. 


338  JAMES   V.    SEATTLE. 

of  Holyoke  to  become  a  member  of  the  League  of  American  Munici- 
palities, and  the  attendance  of  a  committee  made  up  of  the  mayor  and 
certain  members  of  the  board  of  aldermen  upon  any  meeting  of  that 
League  is  for  the  purpose  of  listening  to  or  taking  part  in  general  dis- 
cussions concerning  municipal  administration.  The  general  education 
of  the  mayor  and  aldermen  upon  all  matters  relating  to  municipalities 
in  the  United  States  and  Canada  is  not,  we  think,  a  public  purpose, 
and  cannot  be  paid  for  out  of  the  funds  of  the  city.  An  injunction 
should  be  issued  as  prayed  for. 

^  So  ordered. 


JAMES  V.  SEATTLE 
1900.    22  Wash.  654. 


Reavis,  J.^   In  October,  1898,  the  city  council  of  Seattle  passed  an    .^ 
ordinance   providing,    "  that   a    special   committee   consisting  of  the   '^^ 
whole  membership  of  the  city  council,  or  so  many  members  as  may  be    ■qj 
able  to  serve,  and  such  executive  officers  as  may  be  chosen  by  the  city  uJ 
council,    be   and  hereby  are  appointed  to  visit  the  cities  of  Duluth,  '^^^ 
West  Superior,  St.  Paul  and  Minneapolis,  Minn.,  Great  Falls,  Mont.,    ^^^ 
Spokane,  Wash. ,  and  such  other  cities  as  may  be  deemed  advisable  by 
said   committee,    for   the   purpose  of  securing  information  upon  the  ^^ 
matters  referred  to  in  the  preamble  of  this  ordinance."     The  mat-      f-, 
ters  referred  to  in  the  preamble  were  "waterworks,  street  paving, 
street  lighting,  terminal  facilities,  and  other  municipal  matters  which       ^ 
are  now,  and  constantly  will  be,  coming  before  the  legislature  and 
executive  departments  for  consideration."     The  appellant,  with  other 
members  of  the  city  council  and  some  other  city  officers,  in  October, 
1898,    visited   St.    Paul,    Minneapolis,   Duluth,   West   Superior,    and 
Spokane,    for  the  purpose  of  investigating  and  securing  information 
concerning  the  matters  mentioned  in  the  preamble  of  the  ordinance, 
and  made  necessary  expenditures  for  his  transportation,  board,  and 
lodging.     In  November,  1898,  he  filed  with  the  secretary  of  the  audit- 
ing committee  his  claim  against  the  city  for  such  expenditures.     The 
claim  was  duly  and  regularly  audited,  reported  to  the  council  and  ap- 
proved, and  an  ordinance  adopted  directing  a  warrant  to  be  drawn  for 
appellant's   claim,    with   others,    and  appropriating  money  from  the 
general  fund  to  pay  the  same.     The  warrant  was  drawn  in  appellant's 
favor  for  the  amount,  and  signed  by  the  mayor.     But  the  respondent 
Parry,  city  comptroller,  refused  to  countersign  the  same,  and  the  de- 
fendant city  refused  to  deliver  the  warrant  to  appellant.    The  suit  was 
brought  to  procure  a  peremptory  writ  of  mandate  to  compel  the  re- 
spondent Parry,  as  city  comptroller,  to  countersign  and  to  compel  the 

1  Arguments  omitted.  —  Ed.  ^  . 


JAMES   V.    SEATTLE.  339 

city  to  deliver  to  plaintiff  the  warrant.  The  respondents  demurred  to 
the  affidavit  for  the  writ  on  the  ground  that  it  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  or  to  entitle  plaintiff  to 
the  relief  therein  prayed  for.  The  demurrer  was  sustained,  and 
the  appeal  is  from  the  order  sustaining  the  demurrer  and  the  judgment 
entered  in  favor  of  respondents. 

It  is  urged  here  by  counsel  for  appellant  that  the  comptroller  is  a  ^l ,  (y^^y^ 
ministerial  ofl^cer  and  has  no  discretion  in  the  discharge  of  his  duties.    >vv*^' 
The  city  charter  provides  that  he  shall  countersign  all  warrants  upon 
the  treasury.     Several  authorities  are  cited  to  support  appellant's  con- 
tention.    The  case  chiefly  relied  upon  is  that  of  McConougJiey  v.  Jack-      ^^**''»"^''-'^-^ 
son,  101  Cal.  265,  3o  Pac.  863,  40  Am.  St.  Rep.  53.    In  that  case  the 
plaintiff  applied  for  a  writ  to  compel  the  city  clerk  to  issue  a  warrant 
for  a  claim  for  expenses  incurred  by  him  in  procuring,  at  the  request 
of  the  city,  through  the  trustees  thereof,  counsel  and  legal  services  for 
the   city.     The  bill  was  approved  by  the  trustees  and 'ordered  paid. 
One  of  the  defenses  set  up  by  the  clerk  was  a  denial  of  the  indebted- 
nesses.    With  reference  to  this  the  court  observed  : 

"The  law  has  not  constituted  the  clerk  either  the  guardian  of  thet  ^^' 
board  of  trustees  or  an  appellate  court  to  pass  upon  the  facts  oncel  tils^^^  vv^ 
^decided  by  the  board.  The  chihn  was  one  which  the  board  of  trustees  \  ^(^l  ,  f  ^ 
TTad  jurisdiction  to  liear  and  determine.  Such  determination  was  aT  j^  ""  rj 
judicial  act,  and  involved  a  determination  of  the  fact  of  indebtedness,  J  r,^XZ>^ 
and  when  so  determined,  whether  right  or  wrong,  its  action  was  bind- '  (5v,«^^ 
ing  upon  the  clerk."  \7■^^**'* 

Counsel  maintains  that  the  subject  of  waterworks,  street  paving, 
street  lighting,  terminal  facilities,  and  other  municipal  matters  comes 
within  the  control  of  the  city  council,  and  that  members  of  the  council 
are  bound  to  use  their  best  endeavors  in  behalf  of  the  tax-payers,  by 
giving  them  the  best  results  in  the  most  economical  manner,  and  that 
it  is  the  duty  of  councilmen  to  inform  themselves  concerning  all  mat- 
ters which  come  before  them,  that  they  may  act  intelligently  for  the 
benefit  of  the  city.  It  is  true,  the  members  of  the  city  council  owe  the 
public  duty  to  the  city  to  exercise  their  best  faculties  in  its  interest. 
The  compensation  of  a  member  for  his  official  duties  as  councilman 
may  be  determined  and  fixed,  and  cannot  be  changed  during  his  incum- 
bency of  office.  Ifjhe  members  of  the  council,  upon  their  tour  of  in- 
spection,  were  in  the  discharge~of~thelr  official'  clu tie s7"the  restriction 
upon  additional  compensation  applies.  Takoma  v.  LiUis,  4  Wash". 
797,  31  Pac.  321,  18  L.  R.  A.  372. 

The  only  ground,  then,  upon  which  compensation  could  be  sustained, 
would  be  that  of  necessary  expenses  incurred  in  the  performance  of 
official  duties.  Necessary  expenses  must  be  such  as  are  strictly  esseu- 
tial  to  municipal  purposes.  This  principle  is  well  established.  1  Dil- 
lou,  IMunicipaT  Corporations  (4th  ed.),  §§  89-91 ;  19  Am.  &  Eng.  Enc. 
of  Law,  541. 

Judge  Cooley,  in  his  work  on  Taxation,  p.  209,  observes: 


Urj. 


340  POTTS   V.    CAPE   MAY. 

"In  the  construction  of  any  grant  of  the  power  to  tax  made  by  the 
state  to  one  of  its  municipalities,  the  rule  which  is  accepted  by  all  the 
.authorities  is,  that  it  should  be  with  strictness.  The  reasonable  pre- 
sumption is  held  to  be,  that  the  state  has  granted  in  clear  and  unmis- 
takable terms,  all  it  has  intended  to  grant  at  all ;  and  whatsoever 
authority  the  municipal  officers  assume  to  exercise,  they  must  be  able 
to  show  the  warrant  for  in  the  words  of  the  grant." 

And  we  think  the  rule  thus  announced  is  the  established  one,  and  in 
consonance  with  all  sound  authority.  The  members  of  the  city  coun- 
cil are  trustees.  The  body  holds  a  trust  for  the  inhabitants  of  the  city. 
The  terms  of  the  trust  are  fixed  by  legislation,  and  no  expenditure  of 
money  belonging  to  the  city  can  be  made  without  express  authority,  or 
implied  authority  by  reason  of  a  necessary  granted  power.  Where  this 
authority  does  not  exist,  the  council  is  without  power  to  authorize  the 
payment  of  the  claim  against  the  city;  and,  upon  sound  principle,  it 
cannot  be  conceded  that  the  council  had  the  power  to  authorize  the 
payment  of  the  claim  of  appellant. 

To  the  objection  that  the  comptroller  cannot  defend  against  the  suit, 
it  is  sufficient  answer  that  the  other  principle  has  been  established  by 
this  court.  Chalk  v.  White,  4  Wash.  156,  29  Pa.  979.  Where  the  couqi. 
cil  is  without  power  to  authorize  the  payment  of  the  claim,  the  offi; 
cei""  niay  properly  refuse  to  countersign  the  warrant  directing  the 
payment  of  sucli  claim. 

The  judgment  is  affirmed. 

Dunbar,  C.  J.,  and  Fullerton,  J.,  concur. 

Anders,  J.,  not  sitting. 


«^^;< 


^I^ 


POTTS   V.   CAPE  MAY.      ^    X.^)  ^ 

1901.     66  N.  J.  Law,  544.  ^^*V^' 

Fort,  J.     The  writ  in  this  case  brings  up  two  resolutions  of  tne  city      ^ 
council  of  the  city  of  Cape»May.  Jc^ 

The  first,  adopted  November  23d,  1899,  reads  as  follows: 
"  Whereas,  we,  the  city  council  assembled,  feel  that  the  city  of  Cape    h-^ 
May  has  not  or  is  not  properly  represented  in  an  advertising  or  general  j, 
way,  and  we  think  it  is  very  important  that  our  city,  as  a  resort,  be'  /  7^ 
placed  before  the  people  at  large ;  now  therefore,  be  it  Kr-^ 

" '■'^Resolved,  That  Mr.  L.  E.  Miller  be  appointed  to  represent  this 
city,  with  the  understanding  that  no  contracts  shall  be  made  whereby 
the  city  be  obligated  without  first  the  consent  of  this  council." 
The  second,  adopted  August  7th,  1900,  reads  as  follows: 
' '  Resolved,  That  the  city  solicitor  is  instructed  and  hereby  author- 
ized to  make  the  best  possible  compromise  with  Lemuel  E.  Miller  for 
his  claim  against  the  city."  /, 


^ 


POTTS   V.    CAPE   MAY.  341 

Mr.  Miller  seems  to  have  entered  upon  the  duties  designated  in  the 
resolution  adopted  November  23,  1899,  and  he  subsequently,  it  ap- 
pears b}'  the  record,  presented  a  bill  against  the  city  for  services,  upon 
which,  it  not  being  paid,  suit  has  been  instituted. 

It  was  this  claim  in  suit  which  the  resolution  of  August  7,  1900, 
authorized  the  city  solicitor  to  compromise. 

The  prosecutors  are  residents  and  tax-payers,  and  challenge  the 
power  of  the  city  council  to  pass  the  resolution  in  question,  or  to  incur 
expenses  of  the  character  indicated.  It  is  .conceded  that  no  statute 
expressly  confers  upon  the  city  council  the  power  to  appoint  Miller 
for  such  a  purpose.  The  city  of  Cape  May  is  incorporated  by  a  special 
charter  enacted  in  1875.     Pamph.  L.,  p.  206. 

It  is  undisputed  that  the  city  charter  does  not  authorize  the  appoint- 
ment of  Mr.  INIiller,  unless  the  authority  can  be  gathered  or  implied 
from  the  language  of  sections  9  or  20,  or  both.  \  .  - 

Thr.t  there  is  no  implied  power  in  a  municipal  council  to  employ  \  "^  ^'^"""''^[^^ 
persons  to  do  work  outside  of  duties  germane  to  city  government T>^  ^■w-^/^J'^ 
cannot  be  questioned.  It  is  equally  true  that  municipal  powers  are  to  '"^  VAnrvW' 
be  strictly  construed,  and  where  doubtful  held  not  to  exist.  1  Dill.  '  ^>*^Vv^ 
Mun.  Corp.,  §§  89,  91 ;  Willard  v.  Killingtvorth,  8  Conn.  247;  3fayor  r^  ^ 
V.  Yuille,  3  Ala.  137;  Minturn  v.  Larue,  23  How.  (U.  S.)  435;  Ottawa 
V.  Carey,  108  U.  S.  110. 

Is  there  anything  in  -section  9  or  the  other  provisions  of  the  city 
charter  broad  enough  to  be  held  to  cover  the  engagement  of  a  person 
to  advertise  the  city,  in  a  general  way,  "  as  a  resort  before  the  people 
at  large  "  ? 

Section  9  of  the  city  charter  authorizes  the  appointment  of  "  such  ^|       '^a     t 
other  and  all  subordinate  officers  of  the  said  city,"  whether  named  in    ^      .      ^  i-  ' 
the  act  or  not,  as  "  ma}',  in  the  opinion  of  the  city  council,  be  necessary    ^'^'^f^  ^^^^ 
for  the  better  ordering  and  governing  the  said  city,  for  the  preserva- 
tion of  its  health,  or  for  the  convenience,  safety  and  advantage_qf. 
commerce  and  trade." 

~~Tn^connection  with  this  section  of  the  charter  another  clause  should  'tv-*— < 

be  quoted,  and  that  is  the  last  clause  of  section  20,  which  declares 
that  "the  city  council  shall  have  power  to  make  and  establish  such 
ordinances,  regulations,  rules   and    by-laws  ...  as  they  may  deem  C^*'^^'^'"'" 
necessary  and  proper  .  .   .   for  the  prospgiity  of  the^said.city  and^^i^     •«?&       -L,. 
inhabitants,  and  the  same  to  alter,  modify  and  repeal."  vVi  <^>CA^• 

We  do  not  think  the  provisions  of  the  city  charter,  above  quoted, 
are  broad  enough  to  cover  an  engagement  of  a  party  to  perform 
the  services  indicated  by  the  resolutions  brought  up  by  the  writ  and 
the  bill  of  Mr.  Miller  as  presented  to  the  city  council,  as  found  in  the 
record. 

The  items  of  the  account  rendered  by  Mr.  IMiller  clearly  demonstrate 
that  the  duties  he  did,  and  which  evidently  he  thought  he  was  engaged 
to  perform,  consisted  in  going  to  Philadelphia  and  entertaining  persons  i        ,-■  ,-- 
there,  and  at  Cape  May,  at  dinner  and  the  like.     The  dinners  being  \   v.-^  ^-^ 


,1^ 


342  MATTER   OF   CHAPMAN    V.    NEW   YORK. 

given  to  persons  whom  he  might  think  able  to  "  boom  "  the  city,  or 
bring  custom  to  it  by  way  of  shortened  or  speedy  transportation. 
The  evidence  would  seem  to  indicate  that  the  chief  efforts  of  Mr. 
^WUcaA-i  Miller  were  directed  to  securing  advantages  for  the  Cape  May  and 


I^LAJ^^^J^ 


New  Jersey  Coast  Steamship  Company,  in  which  he  either  was  then  or 
very  soon  after  largely  interested,  as  his  testimony  shows. 

The  power  to  appoint  city  officers  in  the  ninth  section  gives  authority 

to  appoint  as  city  officers  only  such  officers  as  "  may  be  necessary  for 

'^^  the  convenience,  safety  and  advantage  of  commexcfi^and  trade.''     That 

^P^  means  commerce  and  trade  within  the  city  —  the  regulation  and  direc- 

■*^*^**^       tion  of  commercial  affairs  within  the  city;     such  officials  as  may  be 

necessary  within  the  city  to  promote  convenience,  secure  safety  and 

be  to  the  advantage  of  commerce  and  trade  of  the  inhabitants.     Nor 

clo  we  think  that  the  general  welfare  clause  in  the  tv.entieth  section  of* 

the  charter,  which  permits  the  city  to  adopt  regulations,  &c.,  for  the 

"  prosperity  of  said  city  and  its  inhabitants,"  furnishes  authoritj' to 

engage  a  man  for  the  purposes  for  which  Mr.  Miller  was  engaged". 

The  twentieth  section  only  authorizes  the  employment  of  officials  "for" 

the  preservation  of  the  public  health  and  prosperity  of  said  city  and 

its  inhabitants."     This  clause  cannot  be  extended  to  embrace  officers, 

as  city  officials,  who  are  to  be  engaged  in  matters  entirely  aside  from 

city  duties,  within  the  purview  of  the  city  government. 

(  v*    If  it  is  within  the  power  of  a  city  council,  under  a  general  welfare 

\t  '    <|clause  of  this  character,  to  appoint  and  pay  an  officer  to  travel,  ad- 

^      '•  jvertise  and  canvass  for  custom  and  sojourners,   it  is  equally  within 

their  power  to  engage  in  various  enterprises  which  they  may  think  will 

bring  advantage,  by  way  of  commerce  or  trade,  to  the  city. 

Such  powers  will  never  be  inferred ;  if  they  are  found  to  exist  it 
must  be  because  of  some  express  provision  of  the  city  charter  by 
which  they  are  clearly  conferred. 

The  resolutions  brought  up  are  ultra  vires  the  municipality  and  are 
set  aside.  0        ^^"T^  v 


MATTER  OF   CHAPMAN   v.   NEW  YORK.    '      ^^  A 
1901.     168  N.  Y.  81.  ^'^^'^-ff*'?*:,    ^ 

Vann,  J.  The  statute  under  which  this  proceeding  was  instituted"  P 
provides  for  the  appointment  of  a  referee  "to  hear,  examine  into  and  '  n^ 
report "  the  amount  of  reasonable  counsel  fees  and  expenses  paid  otSaS 
incurred  by  a  city  or  county  officer  in  successfully  defending  himself 
in  any  trial  or  proceeding  "  to  remove  him  from  office  or  ...  to  con-  "^ 
vict  him  of  any  crime"  alleged  to  have  been  committed  "  in  the  per-  '"  '^ 
formance  of  or  in  connection  with  his  official  duties,"  and  that  the  ')^ 
amount  allowed  by  the  referee,  when  confirmed  by  the  court,  be  paid  *H.i 
by  the  issue  of  revenue  bonds  to  be  included  in  the  taxes  levied  for     ^ 


MATTER  OF  CHAPMAN  V.    NKW  YORK. 


343 


the  following  year  in  the  city  or  county  affected.  L.  1899,  oh.  700. 
Another  part  of  the  act  provides  for  the  payment  of  similar  claims  by 
the  state ;  but,  as  the  validity  of  that  part  is  not  involved  in  this  ap- 
peal, no  further  allusion  need  be  made  to  it.  _^'- 

While  other  questions  have  been  discussed  before  Us,  the  maiii^;^::^^^'^*''^^ 
question  is  whether  the  legislature  had  power,  under  the  Constitution^:? "fit 
of  our  state,  to  pass  this  statute.  That  question  has  been  passed  upon/-  —-^^^jjcAcI 
several  times  by  the  Supreme  Court,  and  the  conclusion  reached  by 
every  judge  who  considered  it  is  that  the  statute  is  unconstitutional. 
Matter  of  Straus,  44  App.  Div.  425  ;  JJatter  of  Jensen,  28  Misc.  Rep. 
379  ;  affd. ,  44  App.  Div.  509  ;  flatter  of  Chapman,  bl  App.  Div.  582 ; 
Matter  of  Fallon,  28  Misc.  Rep.  748;  Matter  of  Labrake,  29  Misc. 
Rep.  87.  Our  examination  has  led  us  to  the  same  result,  and,  as 
the  discussion  of  the  subject  has  been  so  thorough  and.  able  in  the 
courts  below,  it  is  necessary  for  us  to  do  little  more  than  announce 
our  conclusion. 

In  a  case  which  arose  under  the  Constitution  of  1846  before  it  was 
amended,  expressions  were  used  by  learned  judges  of  this  court  which 
went  beyond  the  requirements  of  the  decision  they  made.  Ihiun  of 
Guilford  \.  Bd.  of  Supers.,  Chenango  Co.,  13  N.  Y.  143.  All  that 
was  actually  decided  was  that  the  legislature  had  power  to  require  a 
board  of  supervisors  to  assess  upon  the  taxable  property  of  a  town  the 
amount  which  highway  commissioners  had  been  compelled  to  paj'  for 
costs  in  an  action  commenced  by  them  pursuant  to  the  direction  of  the 
voters  of  the  town.     The  payment  of  such  a  claim  was  not  an  act  of 

It  was,  however, 


charity,  as  it  rested  on  a  strong  moral  obligation . 


\ 


declared  in  one  of  the  opinions  that  "  the  Legislature  has  the  right  to 
appropriate  the  public  moneys  for  local  or  private  purposes,  and  to  im- 
pose a  tax  upon  the  property  of  the  whole  state  or  any  portion  of  the 
state,  or  any  particular  or  specified  kind  of  property."  In  another 
opinion  it  was  said:  "The  Legislature  is  not  confined  in  its  appro- 
priation of  the  public  moneys  or  of  the  sums  to  be  raised  by  taxation  in 
favor  of  individuals  to  cases  in  which  a  legal  demand  exists  against 
the  state.  It  can  thus  recognize  claims  founded  in  equity  and  justice 
in  the  largest  sense  of  those  terms  or  in  gratitude  or  charity."  Subse- 
quent cases,  following  the  dicta  rather  than  the  decision,  led  to  results 
which,  as  it  is  said,  induced  the  jDCople  in  1874  to  amend  the  Consti- 
tution by  adding  sections  ten  and  eleven  to  article  eight.  Section  11 
was  amended  in  1884  by  adding  further  provisions,  and  the  substance 
of  both  sections  appears  in  the  revised  Constitution  of  1894.  Art.  8, 
sections  9,  10.  Section  nine  is  not  now  important,  as  it  relates  to  the 
giving  or  lending  of  the  credit  or  money  of  the  state,  but  section  ten 
makes  it  a  part  of  our  fundamental  law  that  "  no  county,  city,  town  or 
village  shall  hereafter  give  any  money  or  property,  or  loan  its  money  I 
or  credit  to  or  in  aid  of  any  individual,  association  or  corporation,  .  .  .  | 
nor  shall  any  such  county,  city,  town  or  village  be  allowed  to  incur 
any  iudebtedpess  except  for  count}-,  city,  town  or  village  purposes."   . 


'^-'     'kXv       ■*> 


^JW^-V.^-o-iC<    /><^^.-*>c- 


•'Tv 


344 


MATTER  OF  CHAPMAN  V.    NEW  YOEK. 


It  has  been  held  that  this  provision  does  not  prevent  the  legislature 
from  authorizing  the  payment  by  a  municipal  corporation  of  a  claim 
which,  although  it  could  not  be  enforced  by  the  courts,  is  founded  in 
justice,  supported  by  a  moral  obligation,  and  could  have  been  legally 
created  if  the  proceedings  of  the  local  authorities  had  been  regular. 
WrougJd  Iron  Bridge  Co.  v.  Toivn  of  Attica,  119  N.  Y.  204-211.  So 
it  may  be  argued  that  payment  of  a  claim  otherwise  valid,  but  against 
which  the  Statute  of  Limitations  bad  run  in  favor  of  a  municipal  cor- 
poration, or  of  one  for  money  expended  or  services  performed  for  the 
benefit  of  a  city  without  lawful  authority,  might  be  authorized  or  re- 
quired by  the  legislature.  Neiv  Orleans  v.  Clark^  95  U.  S.  644 ; 
Friend  v.  Gilbert,  108  Mass.  408;  Brewster  v,  Citi/  of  Syracuse,  19 
N.  Y.  116;  Brown  \.  Mayor,  etc.,  of  N.  T.,  63  N.  Y.  239;  3Iayor, 
etc.,  ofN.  Y.  v.  Tenth  Nat.  Bank,  111  N.  Y.  446.  If  a  legal  liability 
to  pay  once  existed,  but  has  been  suspended  or  barred  in  some  techni- 
cal way  short  of  substantial  satisfaction,  a  moral  obligation  to  pay 
still  exists,  which  is  recognized  both  by  statute  and  common  law. 
Code  Civ.  Pro.  section  395;  Tebbetts  v.  Dowd,  23  Wend.  379-382; 
Buswell's  Stat,  of  Lim.  section  36. 

In  the  case  before  us,  however,  no  benefit  was  conferred  upon  the 
'  city,  and  there  was  never  a  legal  or  moral"ol5TTgation  oh  Ihe  pa'rT'of "the__ 
cityto  i)rty  the  claim  in  question.  For  time  out  of  mind,  in  all  gov- 
ernments where  the  common  law  prevails,  a  person  pi-osecuted  for  crime 
has  been  compelled  to  pay  his  own  expenses  when  he  had  the  means 
of~doing  so.  Peojjle  ex  rel.  Brown  v.  Bd.  ofSiqyt/is.,  Onondaga  Co.,  4  N". 
,Y.  Cr.  Rep.  102 ;  affirmed,  102  N.  Y.  691.  If  without  means,  the  counsel 
/assigned  by  the  court  served  without  pay,  except  under  a  recent  stat- 
ic ute  a  moderate  allowance  may  be  made  in  a  capital  case.  L.  1897, 
\h.  427  ;  Code  Cr.  Pro.  section  308.  This  e^cegtion  is  founded  on 
the  theory  that  a  fair  trial  cannot  be  had  without  the  aid  of  counsel, 
and  that  money  paid  from  public  funds  to  counsel  appointed  by  the 
court  for  a  prisoner  without  means,  is  paid  for  a  public  purix)se.  The 
proceeding  instituted  against  the  appellant  was  not  a  prosecution  for 
crime,  but  to  discipline  or  remove  him  for  misconduct  as  a  public 
officer.  There  was  no  authority,  statutor}''  or  otberv/ise,  to  appoint 
counsel  to  defend  him,  and  no  attempt  was  ma.de  to  do  so.  It  was 
necessary  for  him  to  employ  and  pay  his  own  counsel,  as  has  always 
been  the  case  with  others  similarly  situated.  Payment  of  his  expen- 
ses by  the  public  would  be  a  mere  gratuity,  and  without  the  sanction 
of  custom  or  precedent.  There  was  no  moral  obligation  on  the  part 
of  the  respondent  to  discharge  such  a  claim,  for  it  had  no  foundation 
in  natural  or  legal  right.  It  is  not  the  duty  of  the  public  to  defend  or 
aid  in  the  defense  of  one  charged  with  official  misconduct.  The  history 
of  morals  or  jurisprudence  recognizes  no  such  oTStigatfon.     When  a 


citizen  accepts  a  public  office  he  assumes  the  risk  of  defending  himself 
against  unfounded  accusations  at  his  own  expense.  AVhoever  lives  in 
a  country  governed  by  law  assumes  the  risk  of  having  to  defend  him 


^■?«-*^ 


M 


K7. 


<i^ 


MATTER   OF   CHAPMAN   V.    NEW   YORK. 


345 


self  withont  aid  from  the  public,  against  even  unjust  attempts  to  en- 
force the  la\A',  the  same  as  he  assumes  the  burden  of  taxation.  As 
was  said  in  Matter  of  Jensen^  supra,  it  is  '*a  part  of  the  price  he 
pays  for  the  protective  infiueuce  of  our  institutions  of  government." 
Asking  for  aid  to  pay  the  expenses  of  a  defense  already  made  from 
one's  own  resources,  is  like  asking  for  aid  in  the  payment  of  taxes  or 
the  discharge  of  any  public  burden.  It  is  not  a  city  or  county  purpose, 
but  a  mere  gift. 

The  courts  Have  fonnd  it  difficult  to  define  a  county,  city,  town  or  I 
village  purpose,  and  have,  as  a  rule,   proceeded  by  the  process  of  ex- 1 
elusion.     People  ex  rel.  Murphy  v.  Kelly,  76  N.  Y.  475-487;  Matter  of 
Mayor,  etc.,  of  N.   T.,  99  N.  Y.  569-585;  Matter  of  Niagara  Falls 
and  Whirlpool  Hy.  Co.,  108  N.  Y.  375-385. 

In  Sun  Printing  &  Publishing  Association  v.  Mayor,  etc.,  of  N.  Y"., 
152  N.  Y.  257-265,  the  following  general  definition  was  laid  down  : 
"  The  purpose  must  be  necessary  for  the  common  good  and  general 
welfare  of  the  ])eople  of  the  municipality,  sanctioned  by  its  citizens, 
public  in  character  and  authorized  by  the  legislature." 

In  Bush  V.  Bd.  of  Supers.,  Orange  Co.,  159  N.  Y.  212-217,  it  was 
declared  in  substance  that  the  paj'ment  of  a  claim  "which  there  was 
no  legal  or  moral  obligation  on  the  part  of  "  a  town  to  pay,  is  not  a 
town  purpose,  and  "  is  in  conflict  with  the  provision  of  the  Constitution 
.  .  .  which  forbids  the  town  from  giving  any  money  to  or  in  aid  of  an 
individual." 

In  Matter  of  Greenp,  166  N.  Y.  485-494,  the  court  alluded  to  "the 
distinction  between  the  gratuity  which  the  Constitution  now  forbids 
and  the  meritorious  claim  which  it  permits  municipal  bodies  to  satisfy." 
In  Bd.  of  Supers.,  Cayuga  Co.  v.  State,  153  N.  Y.  279-293,  which  in- 
volved the  validity  of  an  act  providing  for  the  reimbursement  of  a 
county  by  the  state  for  the  expenses  of  trials  for  crimes  committed  in 
a  state  prison,  it  was  held  that  such  provision  "was  not  a  gift  of 
money  by  the  state,  but  was  intended  as  a  discharge  of  an  erpiitable 
obligation,  although  unenforceable,  which,  in  the  judgment  of  the  leg- 
islature, rested  upon  the  state." 

In  Roberts  v.  State,  160  N.  Y.  217,  no  definition  was  attempted,  but 
the  doubt  expressed  on  page  224  is  not  without  significance. 

As  a  city  purpose  is  of  necessity  a  public  purpose,  limited  or  ap- 
plied to  a  city,  the  definition  of  a  public  purpose  by  the  Supreme 
Court  of  the  United  States,  in  an  important  case,  is  worthy  of  careful 
attention.  That  learned  court  declared  that  "  there  can  be  no  lawful 
tax  which  is  not  laid  for  a  public  purpose.  It  may  not  be  easy  to  draw 
the  line  in  all  cases  so  as  to  decide  what  is  a  public  purpose  in  this 
sense  and  what  is  not.  It  is  undoubtedly  the  duty  of  the  legislature 
which  imposes  or  authorizes  municipalities  to  impose  a  tax,  to  see  that 
it  is  not  to  be  used  for  purposes  of  private  interest  instead  of  a  public 
use,  and  the  courts  can  only  be  justified  in  interposing  when  a  viola- 
tion of  this  principle  is  clear,  and  the  reason  for  interference  cogent. 


cJc-. 


<<--,    tv-r 


346 


MATTER   OF   CHAPMAN    V.    NEW   YORK. 


4 


fiy-JT^ 


And  in  deciding  whether  in  a  given  case  the  object  for  which  the  taxes 
are  assessed  falls  upoa  the  one  side  or  the  other  of  this  line,  they  must 
be  governed  mainly  by  the  course  and  usage  of  the  government,  the 
objects  for  which  taxes  have  been  customarily  and  by  long  course  of 
leo-islation  le\'ied,  what  objects  or  purposes  have  been  considered  nec- 
essary to  the  support  and  for  the  proper  use  of  the  government, 
whether  state  or  municipal.  Whatever  lawfully  pertains  to  this  and  is 
sanctioned  by  time  and  the  acquiescence  of  the  people,  may  well  be 
held  to  belong  to  a  public  use  and  proper  for  the  maintenance  of  good 
government,  though  this  may  not  be  the  only  criterion  of  rightful  taxa- 
tion." Loan  Association  v.  Topeka,  20  Wall.  655-664.  See,  also, 
Dillon  Mun.  Corp.  [4th  ed.]  sections  75,  76 ;  Cooley's  Const.  Lim.  [5th. 
ed.]  283,  286;  People  ex  rel.  Rodgers  v.  Coler,  166  N.  Y.  1-44. 

Tested  by  these  definitions,  and  we  find  none  more  liberal,  payment 
of  the  appellant's  claim,  which  arose  nearly  three  years  before  the  stat- 
ute in  question  was  passed,  is  not  a  city  or  county  purpose.  His  de- 
fense was  for  his  own  benefit,  not  for  tlie  benefit  of  the  city.  It  was 
a  private  matter  of  his  own,  the  same  as  if  he  had  been  sued  by  the 
city  in  an  action  at  law,  and  had  succeeded  in  his  defense.  As  we 
have  seen,  therewas  no  legal  liability  or  moral  obligation  on  the  part^ 
of  the  city  to  pay  his  expenses,  which  were  not  necessary  for  the  c:)m-__ 
mon  good  and  general  welfare  of  the  municipality,  nor  public  in  charac- 
ler,  nor,  so  far  as  appears,  sanctioned  by  its  citizens.  It  was  in  no 
sense  a  meritorious  claim  from  the  standpoint  of  public  interest  or  good 
government,  nor  one  the  payment  of  which  is  sanctioned  by  the  history 
of  legislation  or  the  acquiescence  of  the  paople.  He  made  an  unpre- 
cedented demand,  and  its  novelty,  when  the  numerous  opportunities 
for  the  presentation  of  such  claims  for  time  out  of  mind  are  considered, 
is  almost  a  demonstration  that  it  was  not  incurred  for  a  public  pur- 
pose. AVhile  vast  numbers  of  people  during  the  history  of  the  state 
have  had  claims  similar  in  principle,  seldom,  if  ever  before,  has  one 
been  bold  enough  to  ask  for  legislation  such  as  that  under  consideration. 

While  we  are  always  reluctant  to  interfere  with  an  act  of  the  legisla-' 
ture,  the  command  of  the  Constitution  is  supreme,  and  we  are  com- 
pelled to  obey  it  by  adjudging  that  tlie  statute  in  question,  in  so  far  as 
it  authorizes  the  payment  of  the  appellant's  claim  from  the  funds  of 
the'respondent,  is  unconstitutional  and  void.  Weismer  v.  Village  oj 
Douglas,  64  N.  Y.  91. 

The  order  appealed  from  should  be  affirmed,  with  costs. 

,_  Order  affirmed. 


\ 


V 


.^V 


-icp-i^ 


V 


HIXON   V.   SHARON. 


HIXON  V.  SHARON. 


1905.     190  Mass.  347. 


347 


"'"^  Knowlton,  C.  J.  This  is  a  petition  brought  by  ten  tax-payers  of 
1^^*  the  town  of  Sharon,  to  enjoin  the^  payinent  of  money  by  the  town 
treasurer,  under  a  vote  of  the  inhabitants  of  the  town  as  follows: 
P^  "That  the  tow^n  reimburse  the  tree  warden  the  amount  incurred  in  de- 
fence of  the  trees  in  the  village  square  being  used  as  guide  posts,  and 
$125  be  appropriated  for  the  purpose."  The  facts  reported  as  the 
foundation  of  the  vote  are  that  the  tree  warden  and  deputy  tree  war- 
den of  the  town  undertook  to  prevent  the  use  of  certain  trees  in  the 
highways  and  public  square  for  the  support  of  guide  boards.  A  suit 
■was  brought  by  the  town  against  these  officers  which  is  reported  as 
Sharon  v.  Smith,  180  Mass.  539.  They  incurred  expense  in  defend- 
ing the  suit,  and  the  decision  of  the  court  was  against  them.  The 
town  having  passed  this  vote  for  their  reimbursement,  the  question  is 
whether  the  vote  was  valid. 

It  may  be  assumed  that  the  warden  and  his  deputy  acted  in  good 
faith  in  the  performance  of  what  they  thought  to  be  a  public  duty. 
They  were  charged  with  the  general  care  of  the  shade  trees  in  the  public 
ways  of  the  town.  A  suit  was  brought  against  tliem,  founded  on  their 
official  action,  and  it  is  found  that  they  expended  in  the  defence  of 
this  suit  more  than  the  sum  now  appropriated.  An  expenditure  in- 
curred in  good  faith  in  this  way  may  properly  be  reimbursed  by  a  town, 
provided  that  the  town  has  a  corporate  right,  duty  or  interest  in  the 
matter  in  respect  of  which  the  official  mistake  was  made.  ,  Nelson  v. 
JlUfonl,  7  Pick.  18.  Bancroft  v.  Lyniifield,  18  Pick.  566.  Babbitt 
V.  Savoy,  3  Cush.  530.  Fuller  v.  Groton,  11  Gray,  340.  Laivrence  v. 
McAlvin,  109  Mass.  311.  The  cases  in  which  it  is  held  that  a  town 
cannot  expend  money  to  reimburse  its  officers  or  agents  for  losses  are 
those  in  which  the  expenditure  relates  to  objects  concerning  which  it 
has  no  duty  to  perform,  no  interest  to  protect,  and  no  right  to  defend. 
Vincent  v.  Nantucket,  12  Cush.  103.  Flood  v.  Leahy,  183  Mass.  232. 
Under  our  statutes  towns  have  an  interest  in  the  shade  trees  in  pub- 
lic places.  They  may  make  appropriations  for  planting  shade  trees  in 
the  public  ways.  R.  L.  c.  25,  §  15.  The  officers  having  the  care  ofi 
public  ways  may  authorize  the  planting  of  trees  in  them  by  individual! 
landowners.  R.  L.  c.  53,  §  6.  Trees  in  the  public  ways  in  cities  can- 
not be  cut  down  or  removed  against  the  determination  of  the  mayor 
and  aldermen.  R.  L.  c.  53,  §§  7,  8.  Regulations  of  the  tree  warden 
for  the  care  and  preservation  of  shade  trees  must  be  approved  by  the 
selectmen.  R.  L.  c.  53,  §  12.  Statutorj^  penalties  for  injury  to  or 
unlawful  interference  with  shade  trees  go  to  the  use  of  the  town. 


T< 


348  LEONAED   V.    MIDDLEBOROUGH. 

R.  L.  c.  53,  §13;  c.  208,  §102.  These  statutes,  and  others,  give 
towns  an  interest  in  shade  trees  in  the  public  ways  which  warrants  the 
expenditure  of  public  money  for  their  protection  and  preservation. 
Although  the  tree  warden  and  his  deputy  were  mistaken  in  their  view 
of  the  law,  their  action,  presumably,  was  intended  for  the  protection 
of  the  trees,  and  in  this  respect  for  the  benefit  of  the  town. 

We  must  assume  that  the  voters  in  town  meeting  took  this  view  of 
their  official  action,  and  accordingly  the  vote  is  valid. 

Petition  dismissed. 


-^y 


<- 


LEONARD  V.  MIDDLEBOROUGH, 

1908.     198  Mass.  221. 

Morton,  J.     The  town  of  Middleborough  voted  no  license  in  regard  ^Hoy 
to  the  sale  of  intoxicating  liquors  in  the  year  1903,  and  appropriated  i\,^,^^ 
at  the  annual  meeting  in  that  year  $500  to  employ  counsel  and  prose-  ^iT^ 
cute  the  illegal  sale  of  intoxicating  liquor  in  the  town.     One  Greene,  ^'i. 
a  special  police  officer,  was  duly  appointed  by  the  authorities  of  the      q^ 
town  a  committee  to  have  charge  of  the  money  so  appropriated.     Heu 
and  one  Luippold,  a  constable  of  the  town,  arrested  or  caused  to  be  ^'^^ 
arrested  one  O'Hara  for  illegally  transporting  intoxicating  liquors  into  i 
the  town,  and  for  bringing  intoxicating  liquors  into  the  town  with  in- 
tent  to  sell  the  same.     O'Hara  was  acquitted  on  both  complaints,  and^>A.fi 
afterwards  sued  Greene  and  Luippold  for  malicious  prosecution  and  ^'^.^^ 
false  arrest.     Greene  and  Luippold  were  put  to  expense  in  defending  ^Ts^*^ 
the  action,  and,  at  the  annual  town  meeting  held  in  March,  1907,  under     7^ 
an  article  in  the  warrant  to  see  if  the  town  would  vote  to  reimburse    cg^ 
Greene  and  Luippold  for  the  money  expended  by  them  in  defending     / 
the  action  brought  by  O'Hara,  the  town  voted  to  expend  $200  there-  ^-^ 
for.     Thereupon  this  petition  was  brought  under  R.  L.  c.  25,  §  100,    / 
by  more  than  ten  taxpayers  of  the  town  of  Middleborough  to  restrain  "^c 
the  payment  of  the  money  so  voted.     The  case  was  heard  upon  agreed 
facts  and  the  presiding  justice  ordered  the  petition  to  be  dismissed  and 
reported  the  case  to  this  court.     If  the  town  had  no  right  to  appropri- 
ate the  money,  a  permanent  injunction  is  to  issue;  otherwise  the  peti- 
tion is  to  be  dismissed. 

Towns  cannot  raise  and  appropriate  money  except  for  the  purposes 
for  which,  within  the  scope  of  the  Legislature's  constitutional  powers, 
they  are  expressly  or  by  fair  implication  authorized  by  statute  to  raise 
and  appropriate  it.  This  results  from  the  nature  of  and  limitations 
upon  their  powers  in  our  scheme  of  government.  There  is  no  express 
provision  authorizing  towns  to  raise  and  appropriate  money  for  such  a 


LEONAED   V.   MIDDLEBOEOUGH. 


349 


purpose  as  that  for  which  the  money  was  appropriated  in  the  case  be- 
fore us.  R.  L.  c.  26,  §  21,  in  relation  to  the  indemnification  of  police 
officers  and  firemen,  applies  to  cities  and  not  to  towns  But  the  stat- 
ute giving  towns  power  to  appropriate  money  provides  that,  in  addition 
to  the  cases  therein  specified,  towns  may  raise  and  appropriate  money 
"^for_jill  other  necessary  charges  arising  in  such  town."  R.  L.  c.  25, 
§  15.  This  has  been  construed  to  authorize  a  town  to  raise  and  appro- 
priate money  in  r('^>i)ec't  to  matters  where  it  has  a  corporate  duty, 
fight  or  interest  to  perform,  defend  or  protect.^  Ifixony.  Sharon,  190 
Mass.  34/.  Flood  v.  Leahy,  183  Mass.  232.  Vincent  v.  JVantucket, 
12  Cush.  103.  The  question,  then,  is,  whether  the  town  of  Middle- 
borough  ha,d  such  a  corporate  right,  duty  or  interest  in  regard  to  the 
enTorcement  of  the  law  concerning  the  sale  of  intoxicating  liquors 
within  its  limitc,  as  to  warrant  it  in  appropriating  money  to  indemnify 
a  special  police  officer  and  a  constable  who  had  been  subjected  to  ex- 
pense by  reason  of  an  action  brought  against  them  in  consequence  of 
complaints  made  by  them  for  the  purpose  of  enforcing  the  law.  We 
tETnk  that  it  bad. 

Under  the  present  system  in  regard  to  the  sale  of  intoxicating  liquors 
in  this  State,  the  question  whether  such  liquors  shall  or  shall  not  be 
sold  in  any  city  or  town  is  wholly  one  of  local  determination.  This  is 
on  the  ground  that  the  matter  is  supposed  to  be  best  dealt  with  as  one 
of  local  concern,  and  that  the  citizens  of  such  city  or  town  have  a  spe- 
cial and  peculiar  interest  in  it  and  should  therefore  be  left  to  decide  it 
for  themselves,  as  in  the  case,  for  instance,  of  what  roads  or  streets 
they  will  have.  This  of  itself,  in  view  of  the  way  in  which  cities  and 
towns  are  or  may  be  affected,  would  seem  to  give  a  town  such  a  cor- 
porate interest  in  the  enforcement  of  the  law  as  to  warrant  the  appro- 
priation in  question.  But  in  Dunn  v.  Framingham,  132  Mass.  436,  it 
was  held  that  selectmen  acted  in  the  enforcement  of  the  law  relatins: 
to  the  sale  of  intoxicating  liquors,  not  as  public  agents,  but  as  agents 
of  the  town,  and  a  vote  appropriating  $700  for  the  enforcement  of  the 
liquor  law,  and  authorizing  the  selectmen  to  employ  agents  and  coun- 
sel, was  held  valid.  The  reasoning  of  the  court  proceeded  on  the 
ground,  though  it  is  nowhere  so  stated  in  terms,  that  the  town  had  a 
corporate  interest  i_ij_._thg  e"l9rggffl6"t  of  the  law.  Amongst  other 
things  that  were  said,  reference  was  made  to  the  fact  that,  in  case  li- 
censes were  granted  in  a  town,  the  town  would  take  the  larger  part  of 
the  license  fees  for  its  own  use,  showing  that  the  towns  were  regarded 
by  the  court  not  merely  as  political  divisions,  but  as  having  corporate 
interests  of  their  own  in  the  enforcement  of  the  law.  So  far  as  appears 
from  an  examination  of  the  papers  in  that  case,  no  licenses  had  been 
granted  by  the  town,  and  the  case  must  be  regarded,  we  think,  as  de- 
cisive of  this.  If_thc  town  had  a  corporate  interest  to  protect,  and  the 
voters  deemed  that  the  action  of  Greene  and  Luippold  was  intended  to 
benefit  the  town,  it  is  settled  that  the  town  had  a  right  to  indemnify 


350  MAGUIRE    V.    WAYNE    CIRCUIT   JUDGE, 

them  even  though  they  were  mistaken  in  their  yiew  of  the  law  and  the 
facts  in  regard  to  the  complaints  which  they  made.  Hixon  v.  Sharon, 
siqjra.  It  does  not  appear  that  they  did  not  act  in  good  faith.  It  is 
not  contended  that  the  vote  appropriating  §500  to  employ  counsel  and 
prosecute  the  illegal  sale  of  intoxicating  liquors  was  invalid.  The  re- 
sult is  that  the  bill  must  be  dismissed. 

V  Bin  dismisstd. 


iv!t^,5)4c^^ 


ATTORNEY   GEXEEAL   ex  rel.   MAGUIRE   v.   WAYNE 

CIRCUIT  JUDGE. 

1909.     157  Mick.  615. 

Brooke,  J.    On  the  9th  day  of  February,  1909,  the  common  council rT^,^,^ 
of  the  city  of  Detroit  passed  the  following  resolution  :  ^-tJ— 

"  Resolved,  That  the  sum  of  five  thousand  dollars  be  and  is  hereby     ^"^• 
appropriated  from  the  moneys  in  the  contingent  fund  and  placed  at 
the  disposal  of  his  honor,  the  ma^'or,  to  investia^ate  the  street  railwav      •- 
question  of  the  city  of  Detroit;  and  the  city  controller  be  and  he  is      '"^ 
hereby  directed  to  pay  any  bills  presented  and  approved  by  his  honor,  A^fc 
the  mayor,  out  of  said  appropriation.''  C\^  77 


Ou  the  12th  of  February.  1909,  the  attorney  general,  on  the  rela- 
tion of  Matthew  J.  Maguire,  a  resident  citizen  and  tax-payer  of  the 
city  of  Detroit,  filed  a  bill  of  complaint  in  the  circuit  court  of  "Wayne 
county  for  the  purpose  of  securing  an  injunction  against  the  common 
council  of  the  city  of  Detroit  "  from  authorizing  the  city  controller  to 
issue  his  warrant  or  any  warrant  upon  the  said  city  treasurer  of  the  said 
city  of  Detroit  for  the  payment  of  said  sum  of  So, 000  or  any  part  thereof, 
for  the  payment  of  any  bill  or  expense  of  the  said  committee  of  50  out 
of  said  contingent  fund  or  any  fund  of  the  city  of  Detroit,  or  bill  or  ex- 
pense incurred  or  to  be  incurred  by  the  said  mayor  under  said  resolution 
of  February  9,  1909,  or  any  similar  resolution  theretofore  or  hereafter 
adopted  by  the  said  common  council ;  "  for  an  injunction  against  the 
mayor  "  from  approving  said  resolution  adopted  by  the  common  council 
of  Detroit  on  February  9,  1909,  and  that  he  be  temporarily  and  per- 
petually enjoined  from  approving  any  bill  or  expense  under  and  by 
^irtue  of  said  resolution,  and  for  expending  any  sum  which  may  be 
paid  to  him  under  and  by  virtue  of  said  resolution  of  February  9,  1909, 
in  the  payment  of  any  bill  or  expense  incurred  and  to  be  incurred  by 
the  said  committee  of  50,  and  in  the  event  of  any  or  all  of  said  appro- 
priation of  85,000  having  been  paid  to  him,  the  said  mayor,  that  he  be 
temporarily  and  perpetually  enjoined  from  paying  or  expending  said 
money  so  collected  by  him  for  any  purpose  whatever,  and  that  he  be 
ordered,  adjudged,  and  decreed  by  this  court,  if  any  of  said  money 


•^t'. 


MAGUIRE   V.    WAYNE    CIRCUIT    JUDGE. 


351 


has  been  paid  to  him,  to  account  for  and  turn  back  into  the  treasury 
of  the  city  of  Detroit  the  same  ;  "  against  Frank  E.  Doremus,  city  con- 
troller, ''  from  issuing  his  warrant  or  any  warrants  upon  the  city 
treasurer  of  the  city  of  Detroit  for  the  payment  of  said  sum  of  85,000, 
or  any  part  thereof,  as  provided  for  in  said  resohition  of  February  9, 
1909,  for  the  liquidation  of  any  bill  or  expense,  presented  and  ap- 
proved by  the  mayor  of  Detroit,  under  said  resolution  of  February  9, 
1909,  out  of  said  contingent  fund  or  any  fund  of  the  city  of  Detroit, 
and  from  making  and  issuing  au}'  warrant  upon  the  said  treasurer  for 
payment  of  any  bill  presented  and  approved,  the  purpose  of  which  be- 
ing to  defray  any  billor  expense  of  the  said  committee  of  50  ;  "  against 
Max  C.  Koch,  city  treasurer  of  the  city  of  Detroit,  '•  from  paying  out 
any  money  from  the  contingent  fund  or  any  other  fund  of  said  city 
upon  any  warrant  or  warrants  executed  by  the  city  controller  under 
and  by  any  virtue  of  the  resolution  adopted  by  the  common  council  of 
the  city  of  Detroit  on  February  9,  1909.  hereinbefore  set  forth." 

The  bill  of  complaint  avers,  among  other  things,  that  the  mayor  of 
the  city  of  Detroit  has  assumed  to  create  a  so-called  "  committee  of 
50,"  composed  of  private  individuals  unconnected  with  the  administra- 
tion of  the  city  government  and  not  authorized  or  created  by  the  Con- 
stitution of  the  vState  or  any  law  of  the  State,  for  the  purpose  of  acting 
with  the  mayor  in  investigating  the  street  railways  of  said  city  and 
their  rights  in  and  to  the  streets  therein,  with  the  view  of  advising  the 
mayor  and  common  council  as  to  what  action  should  be  taken  in  refer- 
ence thereto.  The  city  by  its  answer  admitted  the  passage  of  said 
resolution,  and  appointment  of  the  committee  of  50  by  the  mayor,  and 
its  purpose  to  use  the  fund  appropriated  by  said  resolution  in  defraying 
the  expenses  incurred  by  said  committee  in  investigating  the  street 
car  question  in  the  city  of  Detroit.     Further  answering,  it  avers : 

"That  the  city  of  Detroit  is  a  city  covering  many  miles  of  territory 
with  a  population,  to  wit.  400,000  inhabitants.  That  in  the  year  1862 
certain  rights  were  granted  in  the  streets  in  the  city  of  Detroit  to  cer- 
tain gentlemen  who  afterwards  organized  the  Detroit  City  Eailway 
Company.  That  in  the  year  1879  these  rights  were  extended  for  a 
period  of  30  years.  That  these  grants  by  the  city  of  Detroit  were 
made  under  the  laws  of  the  State  of  Michigan.  That  on  the  14th  day 
of  November,  1909,  the  period  of  extension  granted  in  the  year  1879 
will  have  been  completed.  That  for  a  number  of  years  the  street  rail- 
way question  has  agitated  the  public  mind,  and  has  been  the  subject  of 
discussion  in  political  campaigns.  That  these  defendants  are  informed 
and  believe  that  the  character  of  the  population,  the  manner  in  which 
the  city  has  been  built,  is  such  that  street  railway  service  is  essential  in 
order  to  accommodate  the  people  from  day  to  day.  That  it  is  neces- 
sary to  take  steps  to  continue  the  street  car  service.  That  the  city  of 
Detroit  as  a  municipality  is  powerless  to  engage  in  this  enterprise  itself, 
and  that  it  is  incumbent  upon  the  otKcers  of  the  city  of  Detroit  to 


352 


MAGUIRE    V.    WAYNE    CIRCUIT   JUDGE. 


make  an  investigation  and  ascertain,  if  possible,  upon  what  terras  and 
upon  what  conditions  the  city  may  continue  to  enjoy  street  railway 
facilities.  And  that  the  expenditure  of  money  for  this  purpose  is  the 
expending  of  money  for  a  public  purpose." 

The  answer  denies  that  it  was  the  purpose  of  the  common  council  to 
deprive  itself  of  the  right,  to  audit  and  allow  the  various  items  of  ex- 
pense according  to  the  usual  manner,  but  concedes  that  it  is  the  pur- 
pose to  defray  the  proper  expenses  of  the  committee  of  50  in  and  to 
the  investigation  of  the  street  car  question.  An  order  to  show  cause 
was  issued  by  the  circuit  court  for  the  county  of  Wayne,  upon  the 
return  of  which  a  i^reliminary  injunction  was  denied.  The  case  is  here 
on  an  application  for  m<rndamus  to  compel  the  circuit  judge  to  issue 
the  injunction  prayed  for  in  the  bill. 

There  being  no  final  order  or  decree  in  this  case,  and  the  writ  sought 
being  a  discretionary  one,  it  might  readily  be  determined  that  the 
relief  prayed  should  be  denied  without  a  consideration  of  the  merits. 
See  Kelsei/ Y.  Wayne  Circuit  Judge,  120  Mich.  457  (79  N.  W.  694); 
George  N.  Fletcher  &  Sons  v.  Alpena  Circuit  Judge,  136  Mich.  511  (99 
N.  W.  748).  But  inasmuch  as  the  matter  presents  a  question  of  un- 
usual importance,  and  as  the  denial  of  the  temporary  writ  is  in  effect 
the  denial  of  all  the  relief  sought  in  the  bill,  we  will  consider  the  case 
as  if  it  were  here  on  appeal  from  a  final  decree. 

Three  objections  to  the  action  of  the  city  are  urged  by  the  com- 
plainant : 

(1)  That  the  resolution  was  tQo^vague.. 

(2)  That  it  was  unlawful  to  expend  the  money  for  this  purpose. 

(3)  The  resolution  seeks  to  appropriate  moneys  out  of  the_contin- 
gent  fund  to  defray  expenses  which  are  not  contingent. 

We  do  not  think  that  the  first  objection  urged  by  the  petitioner  is 
tenable.  It  is  a  well-known  fact,  of  which  the  court  may  take  judicial 
cognizance,  that  the  investigation  of  the  street  railway  question  in- 
volves a  vast  amount  of  inquiry  in  many  directions.  The  physical 
value  of  the  property  of  the  railway  company  now  upon  the  streets  of 
the  defendant  city  where  franchises  are  soon  to  expire,  the  necessity 
to  provide  for  the  present  and  future  demands  of  the  city  by  additional 
trackage,  the  proper  and  remunerative  rate  of  fare  to  be  charged  for 
the  service  to  be  rendez'ed,  the  proper  control  of  such  service  and  the 
making  of  it  adequate,  a  just  and  equitable  system  and  rate  of  taxa- 
tion, together  with  many  other  matters  which  are  clearly  of  the  highest 
importance  to  the  city  of  Detroit,  but  could  scarcely  be  enumerated, 
all  of  which,  however,  are  clearly  within  the  expression  "  to  investi- 
gate the  railway  question."  It  may  be  supposed  that  the  common 
council  used  the  general  language  for  the  purpose  of  allowing  such 
freedom  as  the  character  of  the  subject  and  the  necessities  of  the 
situation  might  thereafter  p''operly  develop. 

As  to  the  other  point  raised,  we  conclude  that  there  was  no  such 


MAGUIRE   V.   WAYNE   CIKCUIT   JUDGE. 


353 


knowledge  on  the  part  of  the  city  at  the  tinae  tlie  budget  of  1908  was 
passed  upon  by  the  common  council  and  tlie  board  of  estimates  as  to 
make  it  improper  or  unlawful  for  this  appropriation  to  be  made  from 
the  contingent  fund.  It  is,  as  stated  by  the  complainant,  true  that  the 
city  of  Detroit  knew  in  1908  that  certain  of  the  franchises  of  the 
Detroit  United  Railway  would  expire  in  November,  1909  ;  but  the  ex- 
act manner  in  which  it  might  thereafter  be  determined  wise  to  enter 
upon  an  investigation  of  the  rights  and  duties  of  the  city  and  the  rail- 
way company  as  to  each  other  could  not  have  been  known.  The  con- 
tingent_fund,  as  its  name  implies,  is  one  designed  for  the  purpose  of 
giving  elasticity  to  the  finances  of  a  municipality  and  to  provide  for 
emergencies  such  as  may  arise,  a  fair  example  of  which  is  afforded  by 
tHe~carse  at  bar. 

Tlie  most  important  question,  however,  and  the  one  which  has  given 
us  most  trouble,  is  that  which  arises  from  the  placing  of  the  money  in 
the  hands  of  the  mayor  for  the  designated  purpose,  but  concededly  and 
notoriously  to  be  used  by  him  in  the  defraying  of  the  expenses  in- 
curred by  a  body  of  men  sustaining  no  official  relation  to  the  city  of 
Detroit,  and  being  responsible  to  no  one  for  the  proper  and  honest 
discharge  of  the  obligation  it  has  assumed.  A  consideration  of  these 
facts  at  first  seems  to  present  insuperable  obstacles  to  the  carrying  out 
of  the  project  as  designated  by  the  common  council ;  but  upon  further 
reflection  it  would  seem  that  the  action  may  be  sustained  upon  broad 
grounds  of  public  policy.  The  history  of  the  case  discloses  the  fact 
that  the  common  council  originally  passed  a  resolution  placing  the 
fund  in  question  at  the  disposal  of  the  committee  itself,  but,  upon 
advice  of  the  cor^wration  counsel,  rescinded  that  resolution  and  passed 
the  one  here  in  question.  There  is  no  doubt  that  the  common  council 
ty  a  committee  of  its  own  body  could  employ  and  properly  compensate 
experts  for  the  gathering  and  placing  before  the  council  all  informa- 
tion absolutely  necessary  to  enable  it  to  intelligently  execute  the  trust 
reposed  in  it  by  the  municipality,  with  reference  to  this  most  important 
question.  By  its  action  in  the  present  case  we  are  disposed  to  the 
conclusion  that  it  has  said  in  effect  that'it  desires  for  its  guidance  infor- 
mation to  be  gathered  by  experts  selected  by  and  under  the  direction 
of  the  committee.  In  other  words,  it  has  merely  entered  into  a  con- 
tract with  those  experts  upon  the  advice  and  recommendation  of  a 
committee  of  gentlemen  in  whose  judgment  it  has  confidence. 

The  subject  of  the  right  of  a  municipality  to  deal  with  matters  of 
purely  local  moment  in  the  manner  dictated  by  the  judgment  of  its 
properly  constituted  authorities  has  been  before  this  court  on  more 
than  one  occasion.  In  the  case  of  Attorney  General  v.  Cit>j  of  Detroit, 
26  Mich.  264,  it  is  said  : 

"  It  is  the  unwarranted  use  of  the  money  that  justifies  the  interfer- 
ence, and  the  pretense  upon  which  it  was  raised  is  not  important  to 
the  question  of  jurisdiction.  ...  It  should  appear  that  the  public  has 


354  MAGUIEE   V.   WAYNE   CIRCUIT   JUDGE. 

a  substantial  interest  in  the  question ;  the  right  involved  should  be  a 
public  right,  or  at  least  not  a  private  right  merely;  the  wrong  done  or 
attempted,  if  it  consist  solely  in  a  misuse  or  misappropriation  of  funds, 
should  be  either  one  involving  questions  of  public  policy,  or,  where 
that  is  not  the  case,  the  amount  involved  should  be  something  more 
than  merely  nominal." 

In  Torrent  v.  Common  Coxmcil  of  Muskegon^  47  Mich.  115  (10  X.  W. 
132,  41  Am.  Rep.  715),  it  is  said: 

"  But  in  saying  this  we  do  not  assume  that  it  belongs  to  this  court, 
or  any  other,  to  dictate  to  the  city  how  it  shall  spend  its  money.  The 
council  must  use  its  own  discretion  where  it  will  save  and  where  it  will 
spend;  and  the  case  must  be  a  very  clear  one,  and  the  subterfuge 
very  plain,  before  that  discretion  can  be  regarded  as  having  been 
exceeded  so  as  to  show  an  excess  of  power  under  a  pretense  of  keep- 
ing within  it.  It  is  not  the  business  of  courts  to  act  as  city  regulators, 
and,  unless  the  authority  of  the  representatives  of  the  citizens  has  been 
exceeded,  their  action  cannot  be  interfered  with  merely  because  it  may 
not  seem  to  other  persons  to  be  as  wise  as  it  might  be." 

In  City  of  Port  Huron  v.  McCall,  46  Mich.  565  (10  N.  W.  23),  the 
court,  through  Mr.  Justice  Cooley,  spoke  as  follows : 

"  There  is  a  principle  of  law  that  municipal  powers  are  to  be  strictly 
interpreted,  and  it  is  a  just  and  wise  rule.  Municipalities  are  to  take 
nothing  from  the  general  sovereignty  except  what  is  expressly  granted  ; 
but  when  a  power  is  conferred  which  in  its  exercise  concerns  only  the 
municipality,  and  can  wrong  or  injure  no  one,  there  is  not  the  slightest 
reason  for  any  strict  or  literal  interpretation  with  a  view  to  naiTOwing 
its  construction.  If  the  parties  concerned  have  adopted  a  particular 
construction  not  manifestly  erroneous,  and  which  wrongs  no  one,  and 
the  State  is  in  no  manner  concerned,  the  construction  ought  to  stand. 
That  is  good  sense,  and  it  is  the  application  of  correct  principles  in 
municipal  affairs." 

Upon  a  review  of  the  whole  case,  considering  the  magnitude  and 
importance  of  the  issues  involved  as  affecting  the  rights  of  the  city  of 
Detroit  and  the  future  of  its  citizens,  we  are  of  opinion  that  the  case_ 
presented  is  not  such  an  one  as  would  compel  this  court  to  say  that  in 
the  denial  of  the  injunction  sought  by  the  complainant  the  learned 
circuit  judge  abused  a  discretion  with  which  he  is  clothed. 

The  writ  should  be  denied. 

Hooker  and  IMoore,  JJ.,  concurred  with  Brooke,  J. 

Blair,  C.  J.  I  am  unable  to  concur  in  the  result  reached  by  Mr. 
Justice  Brooke  in  this  matter.  The  solution  of  the  street  railway 
question  for  the  city  of  Detroit  is  unquestionably  a  legislative  problem 
for  the  determination  of  the  common  council.  It  only  concerns  the 
mayor  in  his  official  capacity,  as  all  questions  of  municipal  government 
concern  the  chief  executive,  charged  with  the  duty  of  informing  himself 
as  to  them  and  recommending  action  thereon  from  time  to  time.     The 


MAGUIRE    V.    WAYNE    CIRCUIT   JUDGE.  355 

investigations  which  the  mayor  makes  are  for  the  purpose  of  enabling 
him  to  properly  discharge  the  duties  of  his  office  and  are  compensated 
by  the  salary  provided  for  the  office.  It  is  not  contemplated  by  the 
charter  of  Detroit,  in  my  opinion,  that  the  mayor  shall  make  extensive 
investigations  requiring  the  examination  of  witnesses  and  the  expendi- 
ture of  large  sums  of  money  for  the  purpose  of  equipping  himself  to 
recommend  action  to  the  common  council,  and  the  powers  essential  to 
make  the  investigation  effective  are  not  given  him  therein.  Such  in- 
vestigations fall  within  the  domain  of  legislative  action,  and  the  local 
legislature  is  given  the  necessary  powers  to  make  them  effective.  The 
charter  not  conferring  this  power  upon  the  mayor,  but,  by  implication, 
negativing  it.  Cooley  on  Constitutional  Limitations  (4th  ed.),  pp. 
248-250;  28  Cyc.  pp.  463,  464;  Union  Depot  &  Railroad  Co.  v. 
Smith,  16  C^lo.  361  (27  Fac.  329);  1  Dillon  on  Muncipal  Corpora- 
tions (4th  ed.),  §  96. 

I  have  no  doubt  that  the  common  council  may  choose  its  own 
method  of  collecting  information  to  guide  its  legislative  discretion. 
Tlint,  etc.,  FlanJc-Roacl  Uo.  v.  Woodhidl,  25  Mich.  99  (12  Am.  Rep. 
233).  It  may,  if  it  chooses,  conduct  its  investigation  through  a  com- 
mittee of  outsiders  or  through  the  mayor,  providing  the  investigation  • 
is  made  in  its  behalf,  in  accordance  with  its  directions,  and  subject  to 
its  control,  and  the  results  reported  to  it  for  its  action.  State  Tax- 
Law  Cases,  54  Mich.  350  (20  N.  W.  493). 

The  resolution  under  discussion  was  not  for  the  purpose  of  aiding  the 
local  legislature  to  perform  its  duty,  but  to  assist  the  chief  executive  to 
perform  his  duty.  The  resolution  directs  the  city  controller  "  to  pay 
any  bills  presented  and  approved  by  his  honor,  the  mayor,  out  of  said 
appropriation."  This  provision  is  in  contravention  of  mandatory  pro- 
visions of  the  city  charter  and  is  therefore  illegal  and  void.  McCor- 
viick  v.  Bay  City,  23  Mich.  457.  The  fact,  as  alleged,  that  the  mayor 
intends  to  pursue  the  charter  course  for  the  allowance  of  his  bills, 
cannot  validate  this  invalid  resolution.  The  resolution  must  speak  for 
itself  unaffected  by  undisclosed  intentions.  . 

The  writ  will  be  granted.  "^^^'"^^ 

Grant,  Montgomery,  Ostrander,  and  McAlvay,  JJ.,  concurred 
with  Blair,  C.  J. 

Hooker,  J.  I  concur  with  the  Chief  Justice  in  the  opinion  that  the 
council  has  power  to  investigate  existing  conditions  and  necessities,  as 
regards  the  street  railway  of  Detroit,  and  to  obtain  and  pay  for  pro- 
fessional and  expert  assistance  therein ;  and  I  am  not  prepared  to  say 
that  it  may  not  call  to  its  aid  the  business  judgment  of  its  citizens,  for 
whose  use  it  may  procure,  or  cause  to  be  procured,  such  assistance, 
and  may  pay  the  necessary  expenses  of  such  persons.  I  also  think  it 
may  provide  for  the  payment  of  the  expenses  of  such  persons,  whose 
selection  may  be  made  by  the  council  itself,  a  committee  thereof,  or 
confided  to  the  mayor,  through  whom  it  may  make  its  investigation. 
I  find  nothing  in  the  resolution  indicating  that  the  information  sought 


Y 


356  KETCHUM   V.    CITY   OF   BUFFALO. 

to  be  acquired  was  not  for  the  benefit  of  the  council,  as  well  as  the 
mayor,  and  I_am  not  satisfied  that  the  council  has  not  power  to 
provide  for  the  legitimate  expense  of  the  office  of  mayor,  especially  la 
the  performance  of  duties  imposed  on  him  by  the  council.  It  appeaFs 
to  be  conceded  by  counsel  that  it  could  not  confer  upon  the  controller 
the  authority  to  pay  money  upon  the  certificate  of  the  mayor  alone, 
and  the  learned  circuit  judge  has  found  that  there  is  no  cause  for  ap- 
prehension that  he  will.     I  therefore  concur  in  the  denial  of  the  writ. 


^  C'VK-^LtrtX-N,    ^<}uury>r-jt->~J^      SECTION  VI  — ■  Foiver  to  Contract. 
•cr^    Qvk$Xs_.-^^o-^^     KETCHUM  v.    CITY   OF  BUFFALO. 

Q^  ^^jr      Jt^   ^^t.--^^^-o^^'^  1856.     14  New  York  (4  Kernan),  356.^ 

•2^  b-\A:-t^  Suit  by  tax-payers  of  the  city  of  Buffalo,  against  the  city  and  one 
^c<rvv.M<*-<A-el.  Austin.  The  city  purchased  land  of  Austin  for  market  grounds  at 
i_^^pr^  K  the  price  of  $35,000,  and  gave  Austin  its  bond  for  that  amount,  pay- 

vl<i,/v\i_A5r  •  able  in  twenty-five  years  with  semi-annual  interest.  The  comptroller 
K.<;^Oi4XV>ft.«/9  of  the  city  presented  to  the  common  council  his  estimate  of  expenses 
tx  !i,f^;j;ii_A  to  be  levied  by  tax  in  which  was  an  item  of  $3,675,  interest  on  said 
j^  ^tvJt"  bond  to  Austin.  Plaintiffs  seek  to  have  the  transaction  between 
Vs<L->^  Austin  and  the  city  declared  void,  and  ask  that  the  city  be  perpet- 

^^ds  ^''*'^^**''^ually  enjoined- from  levying  any  tax  for  payment  of  said  bond  or  the 
►  '^Va/oA^^  'interest  thereon. 

Y\    ^  1^1  the  Supreme  Court  judgment  was  rendered  dismissing  the  com- 

^     •     '*p       plaint.     Plaintiffs  appealed. 

v^v~.^p-v*ji-<^     j^    jY^  Rogers,  for  appellants. 

^j.     '  John  L.   Talcott,  for  respondents. 

^"^"^^^^  Selden,  J.      [After  deciding  that  the  city  had  power,    under  Its 

charter,  to  purchase  land  for  the  purpose  of  a  market.] 

But  admitting  that  the  city  had  a  right  to  make  the  purchase,  it 
^-^^^_~^»  is  denied  that  it  could  purchase  upon  credit,  and  execute  the  bond 
•%  m^rv^Vt^  given  for  the  purchase  money.  The  power  of  co;rporations_in  generals. 
tA^IiX/v^iT'^AAA  ^^  ^^^^6  contracts  and  incur  debts  in  the  prosecution  of  their  legiti- 
^jl^^^j^^j^^'^^  mate  business,  and  to  give  their  promissory  notes  for  such  indebted- 
^^^^r  ^lLL  ness,  would  seem  to  be  firmly  established,  not  only  by  universal 
J^TtjVV^^i^jj.  but  by  repeated  judicial  decision.      {Mott  v.  Hicks,  1  Cow.^ 

)VvS£3  513;  Mossy.   Oakleij,  2  Hill,  265;   Kelly  \.  The  Mayor  of  Brooklyn, 

4  Hill,  263;   Moss  v.   McCulloiigh,  5  Hill,  131;  Attorney  General  \. 
*                       Life  and  Fire  Insurance  Company,  9  Paige,  470 ;  McCullough  v.  Moss, 

5  Denio,  b&l.) 

In  the  last  of  these  cases  the  judgment  was  reversed,  not  on  the 
ground  that  the  corporation  had  not  the  power  to  contract  the  debt, 

^  Statement  abridged.     Only  so  much  of  the  case  is  given  as  relates  to  a  single 
^oint.  —  Ed. 


U^  w 


KETCHUM   V,   CITY   OF   BUFFALO.  357 

or  to  give  the  promissory  note,  but  for  the  reason  that  the  property 
purchased  was  not  required  for  the  legitimate  purposes  of  the  com- 
pany. Senator  Lott,  by  whom  the  leading  opinion  was  given,  says: 
"  I  am  satisfied  that  the  note  in  question  was  given  for  purposes  and 
objects  unauthorized  by  its  charter,  and,  therefore,  not  obligatory." 
It  is  true,  the  learned  senator,  in  the  course  of  his  opinion,  seems  to 
intimate  a  doubt  whether  a  corporation  like  that  of  the  Rossie  Lead 
Mining  Company,  instituted  for  specific  business  purposes,  with  a 
limited  capital,  can  virtually  add  to  that  capital  by  the  purchase  of 
a  large  amount  of  property  upon  credit,  especially  where,  as  in  that 
case,  each  stockholder  is  made  individually  liable  for  all  the  debts 
of  the  company. 

However  this  may  be,  sound  reason,  no  less  than  the  authorities  to 
which  I  ha^'e  referred,  forbid  that  it  should  be  held  that  a  corpora- 
tion may  not  incur  a  debt  in  the  exercise  of  its  appropriate  powers, 
or  may  not  purchase,  upon  a  credit,  property  which  is  required  for 
purposes  authorized  by   its  charter.     Municipal   corporations,   espe-\  C«*.'">^  c^*wv 
cially,  obtain  their  funds,   for  the  most  part,  periodically,  by  means  7*^*^v-«-^    ^^  ^ 
of  annual  taxation,   and  it  is  impossible  by  any  degree  of  care  to  I  ""-^^^jdU^^*^ 
adjust  their  means  to  their  wants  so  accurately  but  that  exigencies  will  j^^^*~f*^     iJ 
arise,  rendering  necessary  a  resort  to  the  credit  of  the  corporation.  c»^l_^     U, 

To  deny  to  such  corporations  the  power  to  use  their  credit  in  any  >>AiU 

case,  would  scarcely  comport  with  the  objects   for  which  they  are 
created.      Under  such  a  rule  they  could  not  procure  materials  for  the 
repair  of  a  bridge,   unless  the  money  had  been  raised  in  advance- 
The  affairs  of  no  municipal  corporation  were  ever  conducted,  I  pre-  Gfe-v^w^  •  '*;}2:±: 
sume,  without  incurring  obligations,  for  various „purposes^in  antici-   ■>-^^ — ^  cv--<i 
pation  of  its  revenues.     It  may  be  said  that  there  is  a  distinction   vr^-€-».^.-fc^*<Ar 
between  incurring  debts  for  the  ordinary  and  current  expenses  of  the    ^^-^  (J-voJiA^ 
corporation,  to  be  defrayed  by  the  expected  annual  income,  and  debts  ^(J^-  ^-'^'C?*^ 
upon  an  extended  credit,  for  objects  of  a  permanent  character,  as,  ^^-^-^-^^^-^Aa*. 
for  instance,  that  a  debt  may  be  created  for  the  repair  of  a  bridge  or 
market,  but  not  for  the  erection  of  or  procuring  a  suitable  site  for 
such  market.     I  am  unable  to  discover  any  solid  basis  for  such  a 
distinction,  or  any  definite  line  by  which  it  could  be  marked. 

It  is  easy  to  see  that  it  would  be  extremely  difficult,  if  not  impos- 
sible, to  manage  the  affairs  of  a  municipal  corporation,  without  the 
power  to  contract  upon  its  credit.  Every  contract  for  labor,  not  paic* 
for  in  advance,  is  necessarily  a   contract  upon  credit,   because  the  , 

labor,  when  once  performed,  cannot  be  recalled.  It  is  otherwise  in 
case  of  the  purchase  of  property  to  be  paid  for  on  delivery,  because, 
unless  payment  is  made,  it  need  not  be  delivered.  Still,  if  it  consist 
of  several  parcels,  as  of  several  loads  of  lumber  or  of  stone,  to  be 
delivered  at  different  times,  and  paid  for  when  all  are  delivered;  this 
is  a  contract  upon  credit  for  all  except  the  last  load.  Were  a  corpo-  fcru^.xrj^  ^ 
ration  authorized  in  general  terms  to  build  a  bridge,  without  specifi-  Si[^S^fi~.f^  wsj-»; 
cation  of  manner  or  means,  it  would  scarcely  be  doubted  that  it  might     ^^-vvJaXl^  ^ 


358  KETCHUM   V.    CITY    OF    BUFFALO. 

contract  with  some  person  to  furnish  the  materials  and  erect  the 
bridge  at  a  specific  price,  to  be  paid  upon  the  completion  of  the  job, 
and  yet  this  would  be  to  build  the  bridge  entirely  upon  the  credit  of 
the  corporation. 

But  it  is  useless  to  multiply  arguments  upon  this  point.  The 
power  of  a  corporation  to  contract  upon  its  credit  cannot  reasonably 
be  denied ;  and  if  it  may  do  so  at  all,  there  is,  I  think,  no  rule  of  law 
which  limits  the  length  of  such  credit.  If  a  corporation  may  make 
an  executory  contract  for  property  or  services,  it  must  of  necessity 
have  power  to  agree  upon  the  mode  and  terms  of  payment;  and  to 
say  that  it  cannot  also  agree  as  to  the  time  of  payment,  is  to  make  a 
distinction  which  rests  upon  no  sound  principle,  and  is  not  warranted 
by  any  authority. 

If,  then,  the  city  of  Buffalo  had  power,  under  its  charter,  to  pur- 
chase ground  for  a  market,  it  had  authority,  so  far  as  the  charter  is 
concerned,  to  do  so  upon  a  credit  to  which  there  was  no  limit  but  its 
own  discretion,  and  the  right  to  give  the  single  bill  in  question  would 
follow  as  a  necessary  consequence.  Power  to  contract  the  debt 
must  carry  with  it  power  to  give  a  suitable  acknowledgment  of  the 
indebtedness,  in  the  form  either  of  a  promissory  note  or  a  single  bill. 
I  can  conceive  no  well  grounded  rule  which  would  concede  one  of 
these  powers  and  deny  the  other,  and  no  such  distinction  is  warranted 
by  the  cases. 

It  may  be  objected  that  the  reasoning  here  adopted  tends  to  estab- 
lish the  right  of  a  corporation  to  contract  a  debt  for  any  authorized 
purpose,  by  borrowing  the  money  necessary  to  accomplish  it;  a  right 
which,  from  the  numerous  legislative  acts  on  the  subject,  it  would 
seem  corporations  have  not  generally  been  supposed  to  possess.  It 
is  true  the  power  to  contract  to  pay  A.  $10,000  at  the  end  of  a  year 
for  doing  certain  work,  and  the  power  to  borrow  $10,000  of  B.,  upon 
a  credit  of  a  year,  for  the  purpose  of  paying  A.  for  doing  the  work, 
might  seem,  at  first  view,  to  be  substantially  identical.  The  amount 
is  the  same,  and  the  time  of  payment  the  same ;  the  creditor  only  is 
different. 

A  little  examination,  however,  will  show  that  there  is  a  very 
material  difference  between  the  two.  If_tbe  power  of  the  corpora- 
tion to  use  its  credit  is  limited  to  contracting  directly  for  the 
accomplishment  of  the  object  authorized  by  Taw,  then  the  avails  or 


consideration  of  the  debt  created  cannot  be  diverted  to  any  illegiti- 
mate purpose.  The  contract  not  only  creates  the  fund,  but  secures 
^wn-c*^  ^-te  ^^^  ^^^^  appropriation.  On  the  contrary,  if  the  money  may  be  bor- 
'^^'5t^^'^^'^^''*'*^^rowed,  the  corporation  will  be  liable  to  repay  it,  although  not  a  cent 
may  ever  be  applied  to  the  object  for  which  it  was  avowedly  obtained- 
It  may  be  borrowed  to  build  a  market  and  appropriated  to  build  a 
theatre,  and  yet  the  corporation  would  be  responsible  for  the  debt. 
The  lender  is  in  no  way  accountable  for  the  use  made  of  the  money. 
It  is  plain,  therefore,  that  if  the  policy  of  limiting  the  powers  and 


MILLS   V.    GLEASON. 


359 


expenditures  of  corporations  to  the  objects  contemplated  by  theii 
cbarters  is  to  be  carried  out,  their  riglit  to  incuj*  debts  for  those 
objects  must  be  strictly  confined  to  contracts  which  tend  to  their 
5irect__accogiplishment  rfl:hey  may  procure  the  requisite  funds 
by  the  indirect  method  of  borrowing,  they  may  resort  to  any  other 
indirect  mode  of  obtaining  them,  such  as  establishing  some  profitable 
branch  of  trade,  entering  into  commercial  enterprises,  &c.,  the 
avowed  object  being  to  obtain  the  means  necessary  to  accomplish 
some  authorized  purpose.  No  one  can  fail  to  see  that  to  concede  to 
corporations  the  power  to  borrow  money  for  any  purpose,  would  be 
entirely  subversive  of  the  principle  which  would  limit  their  opera- 
tions to  legitimate  objects.  Hence  the  distinction  between  such  a 
power,  and  that  of  stipulating  for  a  credit  in  a  contract  made  for  the 
direct  advancement  of  some  authorized  corporate  object.  It  is  true 
that  the  act  to  restrict  and  regulate  the  power  of  municipal  corpora- 
tions to  borrow  money,  contract  debts,  and  loan  their  credit,  passed  in 
1853  {Laws  of  1853,  1135),  would  seem  to  proceed  upon  the  assump- 
tion that  such  corporations,  independently  of  legislative  restrictions, 
have  the  power  to  borrow  money.  This  important  question,  however, 
is  yet  to  be  judicially  settled,  but  as  it  is  not  involved  in  this  case, 
I  will  not  dwell  longer  upon  it. 

•  ••••••• 

[The  concurring  opinion  of  Wright,  J.,  is  omitted.] 


MILLS 


I860. 


V.    GLEASON.  vyvv      _ 


Judgment  affirmed. 


Bkl^ 


J:^^ 


v^idta 


6d^a  ( 


11   Wisconsin,  no. ^  -.1  *  :v^       n  5 — " 

Action  torestrain  Gleason,  treasurer  of  the  county  of  Dane,  from  ^'-'^^cV  ^>-c»^ 
selling  the  lands  oFlhe  plaintiff  lying  in  the  city  of  Madison,  for  ^^^^*-<SjLo>^tr\ 
the  taxes  assessed  in  the  year  1857.  Said  tax  was  levied,  in  part,  VA9<o.  ^  ^^ 
to  raise  a  sum  of  $8,000.00,  to  be  paid  as  interest  on  a  loan  of  V^^  'sewi^vl 
$100,000.00  previously  obtained  by  the  city,  and  for  which  bonds  had  ^*J$j^^y-ok^^ 
been  issued.  These  bonds  had  been  negotiated  at  a  discount.  The  V^  Ciih-^ 
money  thus  received  had  been  paid  into  the  city  treasury,  and  much  (r^^^Tti  i 
of  it  had  been  used  in  the  erection  of  city  buildings  and  for  general  Vv^«vn3«-  t  ^ 
city  purposes.     The  plaintiff  claimed  that  the  city  had  no  power  to  ' 

effect  the  loan  or  to  levy  a  tax  to  pay  interest  upon  it.  ii*5=^,lv^ 

The  County  Court  gave  judgment  for  the  plaintiff,  and  the  defend-  cjh     io^-^^v 
ant  appealed.  V^^^^Li^  ^ 

S.   U.  Pinney^  for  appellant.  Slr\rv-v--j^ 

Abbott  &  Clark^  for  respondent.  (<^T>.    ol-itJI 

Paine,  J.  .   .  .  But  it  is  claimed  that  the  city  had  no  power  to  make  Vj       -ftc 

'  Statement  abridged.     Arguments  omitted.     Only  so  much  of  the  opinion  is  given     ^J*^  •^  *^^ 
as  relates  to  a  single  point.  —  Ed.         <A.^  *voT5-d^  V**"*"'^^^^^^^^^-^^-*^"    "^-^^  vvv_^^...J)^    ^  \^ 


360  MILLS    V.    GLEASON. 

IP'^^*<^^  ry_    \  this  loan,  or  issue  its  bonds  therefor.     There  is  no  specialact  and  no 
^''''''*''^^     I  provision  in  its  charter  expressly  authorizing  it,  and  it  wai~~said  that 
*\  l^wlthout  this,  the  power  to  borrow  money  did  not  exist,  and  could  not  be 
claimed  as  incidental  to  the  execution  of  the  general  powers  granted 
by  the  charter.     The  charter  does  confer  the  power  to  purchase  fire 
apparatus,  cemetery  grounds,  etc.,  to  establish  markets,  and   to  do 
many  other  things,  for  the  execution  of  which,  money  w^ould  be  neces- 
sary as  a  means.     It  would  seem,  therefore,  that  in  the  absence  of 
any  restriction,  the  power  to  borrow  money  would  pass  as  an  incident 
to  the  execution  of  these  general  powers,  according  to  the  well  settled 
rule  that  corporations  may  resort  to  the  usual  and  convenient  means 
of  executing  the  powers  granted;  for  certainly  no  means  is  more  usual 
n       <r      ^     for  the  execution  of   such  objects,   than  that  of   borrowing  money. 
-     WiT^r^vr^'^it  an  argument  against  the  right  is  derived  from  the  practice  which 
^^"^    •w^      \  has  prevailed  to  a  considerable  extent,  of  obtaining  special  acts  of 
[13^^  ^,J,.>JU»iihe  legislature,   authorizing  the  procurement  of  loans  by  municipal 
Corporations,  and  the  issuing  of  bonds  or  other  securities  in  payment. 
We  are  not  aware  to  what  extent,  if  any,  this  practice  has  pre- 
vailed in  this  state,  as  to  loans  for  purposes  clearly  municipal,  and 
authorized   by  the  charter;    but   it  seems  to  have  been  resorted  to 
sometimes,  even  in  such  cases,  in  other  states.     The  argument  drawn 
from  the  assumption  on  the  part  of  the  legislature  of  the  necessit\'  of 
such  acts,  is  one  always  entitled  to  consideration,  and  sometimes  of 
much  weight,  though  never  conclusive;  and  we  think,  owing  to  the 
^^Ywi«y  peculiar  nature  of  the  subject  matter,  that  in  cases  involving  a  loan 

^^'y**'*'"^^Dy  corporations,  it  is  of  less  force  than  in  almost  any  other,  for  cap- 
■*^^-*^-**^f^ '  ital  is  of  a  timid  jealous  disposition.  It  delights  in  certainty,  and 
is  alarmed  by  doubts.  It  has  been  held  with  great  strictness,  that 
^corporations  can  exercise  no  powers  except  those  granted  by  their 
charter.  When,  therefore,  the  charter  does  not  expressly  give  the 
power  of  borrowing  money,  even  though  it  grants  powers  to  which 
this  might  be  claimed  as  incident,  yet  there  is  room  for  doubt,  a 
chance  for  an  argument,  and  that  being  so,  it  might,  as  a  matter  of 
policy,  facilitate  the  loan  by  removing  all  uncertainty  by  an  express 
act  of  the  legislature.  And  the  fact  that  such  acts  have  been  passed, 
being  then  clearly  necessary,  when  these  corporations  have  been 
authorized  to  issue  bonds  in  aid  of  purposes  outside  of  their  char 
ters,  may  have  had  a  tendency  to  induce  a  resort  to  the  same  practice 
when  the  bonds  were  issued  for  some  purpose  authorized  by  the  char- 
ter, though  in  that  case  such  legislation  may  not  have  been  necessary. 
For  these  reasons  we  think  there  is  nothing  in  this  practice  sufficient 
to  overthrow  the  general  rule,  that  in  the  absence  of  restrictions,  a 
corporation  authorized  to  contract  debts  and  to  execute  undertakings 
requiring  money,  may  borrow  money  for  those  purposes,  and  issue 
its  bonds  or  other  obligations  therefor. 

This  question  is  alluded  to  in  Ketclmrn  vs.  the  city  of  Biiffalo,  4th 
K^ern.,  356,  and  the  court  held  that  the  fact  that  in  several  other 


MILLS    V.    GLEASON. 


361 


instances,  the  legislature  had  expressly  granted  power  to  corporations 
to  "  purchase  market  lots,"  did  not  justify  the  cor.chision  that  the 
city  of  Buffalo  could  not  exercise  the  power  as  incidental  to  the 
general  power  of  establishing  a  market.  The  court  neld  that,  under 
that  general  power,  it  might  purchase  the  lot  on  credit,  and  issue  its 
bonds  in  payment.  And,  after  carefully  considering  the  suggestions 
made  by  the  learned  judge  who  delivered  the  opinion,  we  fail  to  per- 
ceive any  substantial  distinction,  so  far  as  the  question  of  power  is 
concerned,  between  the  method  there  adopted  and  that  adopted  by  the 
city  of  Madison  in  this  case.  True,  it  is  there  suggested  that  the 
question  whether  the  city  of  Buffalo  could  have  boiTOwed  the  money 
and  paid  for  the  lot,  and  issued  its  bond  for  the  money,  was  a  different 
question,  though  at  first  view  "  they  might  seem  identical."  But  on 
examining  the  points_of_distin^ction  stjtlfijd?  we  think  they  do  not 
affect  the  question  of  power,  but  simply  go  to  show  that  the  one 
method  of  exercising  it  may_ afford  less  facility  for  a  misapplication 
of  the  f unds_tban  the  other^  Thus  it  was  said  that  if  the  money  was 
borrowed  to  build  a  market,  it  might  be  used  to  build  a  theatre, 
whereas  if  the  contract  were  directly  for  the  market,  and  the  bond 
given  in  payment,  it  would  ensure  the  application  of  the  fund  to  its 
legitimate  object.  This  might  be  a  good  reason  why  the  legislature 
should  restricttbe  corporation  to  the  one  method  of  accomplishing' 
the  object;  but  when  the  power  is  granted  Avithout  restriction  as  to 
tEe^ means,  it  does  not,  in  our  opinion,  justify  a  court  in  saying  tha* 
while  the  corporation  has  the  power  of  using  one  means,  it  has  not 
that  of  using  another,  though  equally  direct  and  well  adapted  to  the 
accomplishment  of  the  object,  provided  the  funds  are  honestly  applied; 
merely  because  it  may  afford  greater  facility  for  a  misapplication. 
They  might  undoubtedly  be  misapplied  in  either  case.  Thus,  what 
should  prevent  the  city  of  Buffalo,  having  purchased  a  lot  for  a 
market,  and  given  its  bonds  for  it,  from  erecting  a  theatre  instead  of 
a  market  on  the  lot,  if  it  was  to  be  assumed  that  it  was  willing  to 
pervert  its  funds  and  its  credit  to  unauthorized  purposes?  Or,  hav- 
ing purchased  materials  for  a  market,  it  might  out  of  them  erect  a 
theatre.  Or,  having  given  its  bond  for  the  purchase  of  a  lot,  and  the 
erection  of  a  market,  and  then  having  raised  by  taxation  the  money 
to  pay  the  bond,  it  might  use  the  money  to  build  the  theatre,  leaving 
the  bond  unpaid.  This  opportunity  of  misapplying  the  funds  must 
exist  under  any  method  of  executing  the  powers  of  a  corporation.  If 
one  affords  greater  facility  for  it  than  another,  the  remedy  is  in 
restrictions  by  the  legislature,  and  the  selections  of  honest  and  cap- 
able agents  by  the  people.  But  it  affords  no  ground  for  a  court  to 
say  that  as  a  mere  question  of  power,  the  corporation  may  not  adopt 
the  one  method  as  well  as  the  other;  and  it  being  established  that  a 
corporation  may  purchase  upon  credit  such  things  as  are  necessary 
for  the  execution  of  its  powers,  we  think  it  follows  necessarily  that 
it  may  borrow  the  money  to  pay  for  them,  as  that  is  one  mode  of 
purchasing  upon  credit. 


302  MILLS   V.    GLEASOX. 

Nor  is  the  power  of  taxation  conferred  by  the  charter  to  be  deemed 
:o  exclude  the  power  of  borrowing  money.     The  case  just  referred  to 
.3  an  authority  against  such  a  proposition.     It  holds  that,  notwith- 
^tanding_the  power  of  taxation,  the  corporation  may  resort  to  jta_ 
"credit,  not  only  for  its  ordinary  current  expenses,  but  for  objects  of 
a  permanent  character.     The  case  of  Clark  vs.  School  District,  3  R.  I. , 
hi,  it.*<M.    ^99,  is  also  in  point.     It  was  there  held  that  a  school  district  might 
l„s>.^^.^L^    \  borrow  money  to  pay  debts  contracted  for  the  erection  of  a  school- 
JCft^k^   [house,  and  give  its  note  therefor,  and  that  its  power  of  taxation  was 
'^*\,  not  to  be  construed  as  forbidding  it  to  borrow  money  for  a  legitimate 

purpose.     Beers  vs.   Phoenix  Glass  Co.,  14  Barb.,  358,  and  Mead  vs. 
Keeler,  24  Barb.,  29,  are  also  direct  authorities  in  favor  of  the  power 
of  a  corporation  to  borrow  money,  as  incidental  to  the  execution  of 
its  other  powers.     It  was  said  on  the  argument,  that  it  did  not  appear 
that  the  moneys  received  were  all  applied  to  municipal  purposes.     It 
does  not  appear  how  they  were  all  applied,  but  we  apprehend  it  would 
not   be  incumbent  on  the  lender  to  show  that  they  were  properly 
applied.     If  the  city  had  power  to  borrow  money  for  legitimate  pur- 
poses, a  misapplication  of  the  funds  after  they  were  obtained  would 
not  invalidate  the  contract.     In  Bigeloiv  vs.  the  City  of  Perth  Amhoy, 
Dutch.,  297,  the  city  had  purchased  a  quantity  of  flag-stone,  for  pav- 
ing streets,  and  it  was  claimed  that  the  charter  had  not  been  complied 
■>.Co  ~e^       with,  in  respect  to  the  proceedings  preliminary  to  the  paving  by  the 
'^  >-*^     Icity.     But  the  court  held  that  to  be  a  question  between  the  city  and 
^  flL^rY^Sjl ^'^^  lot  owners,  and  they  add:  "  But  as  between  the  creditors  of  the 
\  t^V>j,;!^|  city  and  the  corporation,  the  only  question  is  whether  the  city  agents, 
^>v-ji.^^i>-f  ^^lis  mayor  and  council,  had  the  power  of  purchasing  the  material  in 
'v^oJtL      jquestion.     How  the  material  was  used,  or  whether  it  was  used  at  all, 
yU>S^       Jis  to  creditor  a  matter  of  total  indifference."     So  in  a  recent  case  in 
England,  Eastern  Counties  li.  R.  Co.  vs.  Ilaivkes,  38  E.  L.  &  E.,  8, 
it  was  held  that  where  the  charter  allowed  the  company  to  purchase 
lands  for  extraordinary  purposes,  a  person  contracting  to  sell  them  land 
was  not  bound  to  see  that  it  was  strictly  required  for  such  purposes, 
^  f'X^y^  j  and  that  if  he  acted  in  good  f aitb^  jwithgut  knowing  of  any  intention 
^\)*'^i\  to  misapply  the  funds  of  the  company,  he  might  enforce  the  contract. 
'^-*^/  ^  The  principle  of  that  decision  would  seem  to  warrant  the  proposi- 

^Jf^"'"''*^)  tion,  that  where  a  corporation  has  power  to  borrow  money,  a  lender, 
'.J.    r^^   acting  in  good  faith,  and  supposing  it  to  be  borrowed  for  legitimate 
rv^  Stoe^"  purposes,  might  recover,  even  though  the  corporation  intended  to  de- 
l  |A»./v^*w>»^vote  it  to  objects  unauthorized.     And  it  would  certainly  sustain  the 
position,  that  where  it  was  borrowed  for  lawful  objects,  no  subsequent 
misapplication  of  the  funds  could  affect  the  rights  of  the  lender,  about 
which  there  is,  in  fact,  no  room  even  for  the  shadow  of  a  doubt. 

•  ••••••• 

Tudgment  reversed.     Cause  remanded  with  direction  that  the  com- 
plaint be  disynissed.  ^  ^^       T) 


V^ 


TOWN   OF  HACKETTSTOWN   V.   SWACKHAMEK,  363 

TOWN  OF  hackp:ttstown  v.  swackiiamp:r.  >-^^--*-— ^r  Y> 

1S74.     37  New  Jersey  Law,  191.  v^-<»/'^-^^  ^nJUvs 

On  rule  to  show  cause.  ■^-^-a-^-c^^ 

Argued  at  June  Term,   1874,  before  Beasley,  Chief  Justice,  and  ^*^^*VJtt* 
Justices  Bedle,  AVoodhull  and  Scudder.  vx*-^ 

For  the  defendants,  Fitney.  ^"V^,  \v 

For  the  plaintiff,    Vanatta.  Vyv^A-h^X^^,^ 

The  opinion  of  the  court  was  delivered  by  63»->^,~_oi  c 

Beaslei',  Chief  Justice.  The  note,  which  is  the  subject  of  this  ^-o-'^^  <\vs».. 
suit,  was  given  by  the  treasurer  of  the  town  of  Hackettstown,  in  ^  *^'*r^M 
the  name  and  behalf  of  the  town,  for  money  borrowed.  This  case,  '<*'\"*-<->-*>jSi 
therefore,  raises  the  question  whether  a  municipal  corporation,  in  the^'*'^^'^^*'^*'^^ 
absence  of  an  express  power  for  that  purpose,  can  contract  ^or  loans  t^*^^' 
for  the  supply  of  its  ordinary  expenses.  '/^-c^-:>Vwo  v 

At  the  present  time  it  seems  to  be  generally  conceded,  that  a  j)ri-  t»^AXA*vj5~wO 
vQ^tP  forpomticmj  constituted  with  a  view  to  pecuniary  profit,  has,  by  '^J'^^v^-atxa) 
implication,  when  not  in  this  particular  specially  restricted,  the  power  ^'"^'^  ^  ^ 
in  question.  The  law  was  so  held  in  this  state,  in  the  case  of  Lucas  .  '>p'"-o-a 
V.  Fitney^  3  Dutcher  221,  and  the  same  rule  has  been  repeatedly  ^^''^■o-^-^^^^^^i 
recognized  in  other  decisions.  And  this  result  is  the  appropriate  jV*"**"*"^ 
product  of  the  principle  that  corporate  powers,  which  are  the  neces-  ^"^*i^^\ 
sary  accompaniments  of  powers  conferred,  will  be  implied.  In  these  *~^^^^^^^^^ 
instances  the  ability  to  borrow  money  is  so  essential  that  without  it  ^^^^T*"^ 
the   business   authorized   could   not   be   conducted   with   reasonable  *^ 

efficiency,  and,  as  it  cannot  be  supposed  that  it  was  the  legislative 
intent  to  leave  the  company  in  so  imperfect  a  condition,  the  inference 
is  properly  drawn  that  the  power  to  raise  money  in  this  mode  is 
inherent  in  the  very  constitution  of  such  corporate  bodies.  Such  a 
deduction  is  simply,  in  effect,  a  conclusion  that  the  lawmaker  designed 
to  authorize  the  use  of  the  means  fitted  to  accomplish  the  purpose  in 
view.  It  has  been  often  said  that  the  means  which  can  be  thus  raised 
up  by  implication  must  be  necessary  to  the  successful  prosecution  /»^  c5^sur*^ 
of  the  enterprise,  and  that  the  circumstance  that  they  are  convenient  (>       ^.^ 

will  not  legalize  their  introduction.     But  the  necessity  here  spoken   ^^^ 
of  does  not  denote  absolute  indispensableness,  but  that  the  power  in    fu^^^^^j^y^^  j- 
question  is  so  essential  that  its  non-existence  would  render  the  privi-  ~. 

leges  granted  practically  inoperative,  or  incomplete.  It  is,  conse- 
quently, obvious  that  a  presumption,  resting  on  such  a  basis  as  this, 
must  spring  up  in  favor  of  almost  the  entire  mass  of  commercial  and 
manufacturing  corporations,  for  without  the  franchise  to  effect  loans, 
the  chartered  business  could  be  but  imperfectly  transacted.  And 
yet,  even  in  such  instances,  the  usual  inference  that  such  an  implied 
power  exists  maybe  repelled  by  the  language  of  the  particular  charter 
or  the  peculiar  circumstances  of  the  case.     In  a  word,  the  rule  of  law 


'>-'ttSwMK 


364  TOWN   OF   HACKETTSTOWN   V.   SWACKHAMER. 

in  question  is  nothing  but  the  discovery,  by  the  courts,  of  the  legls 
lative  intent,  such  intent  having  been  ascertained  by  a  construction 
of  charters,  as  applied  to  the  subject  matters. 

Taking  this  as  the  ground  of  our  reasoning,  J[j^ni_at  a  loss  to  per- 
ceive  how  it  can  be  inferred  that  a  power  to  borrow  money  is  an 
appendage  to  the  usual  franchises  given  to  municipal  corporation3._ 
S uch  a  right  cannot,  in  any  reasonable  sense,  be  said  to  be  necessary 
within  the  meaning  of  that_term  as  already  defined.  Under  ordinary 
circumstances  it  is  not  certainly  indispensable  as  common  experience 
demonstrates.  In  the  great  majority  of  instances  the  municipal 
affairs  are,  with  ease  and  completeness,  transacted  without  it.  I  do 
not  wish  to  be  understood  as  indicating  that  under  certain  special 
^f^"*-^  conditions  an  opposite  deduction  may  not  be  legitimately  drawn.     It 

;^~t  Vvxi^A^  is  plain  that  it  is  practicable  to  impose  a  duty  on  a  municipality 
*<>o — y^  requiring  the  immediate  use  of  large  sums  of  money,  and  in  such  a 
situation  the  inference  may  become  irresistible  that  it  was  intended 
that  funds  were  to  be  provided  by  loans.  My  remarks  are  to  be 
restricted  to  that  class  of  cases  where  charters  are  granted  containing 
nothing  more  than  the  usual  franchises  incident  to  municipal  corpora- 
tions, and  under  such  conditions  it  seems  clear  to  me  that  the  power 
to  borrow  money  is  not  to  be  deduced.  I  have  already  said  that  it 
does  not  appear  to  be  a  necessary  incident  to  the  powers  granted, 
for  such  powers  can  be  readily  and  efficientl}^  executed  in  its  absence. 
It  would  be  to  fly  in  the  face  of  aU  experience  to  claim  that  the 
ordinary  municipal  operations  cannot  be  efficiently  carried  on  except 
with  the  assistance  of  borrowed^capitaL  Without  any  help  of  this 
kind,  it  is  well  known  that  our  towns  and  cities  have  long  been,  and 
are  now  being,  improved  and  governed.  For  the  attainment  of  these 
ends  it  has  not  generally  been  found  necessary  to  resort  to  loans  of 
money.     The   supplies   derived   annually  from  taxation   have   been 

found  amply  sufficient  for  these  purpaaes Consequently  I  am  unable 

to  perceive  any  necessity  to  borrow  money,  under  these  conditions, 
from  which  the  gift  of  such  power  to  borrow  is  to  be  implied.  It 
undoubtedly  is  clear  that  if,  as  has  been  asserted,  the  ends  of  the 
municipal  charter  can  be  conveniently  reached,  without  a  resort  to 
the  device  of  raising  moneys  by  loan,  there  is  not  the  least  legal  basis 
for  a  claim  of  the  power  to  obtain  funds  in  that  way.  Granted  the 
fact  that  the  charter  can  be  executed  with  reasonable  ease  and  with 
completeness,  the  conclusion  is  inevitable  that  the  power  in  question 
cannot  be  called  into  existence  by  intendment,  and  as  I  claim  the 
fact  to  exist  I  must,  of  necessity,  reject  the  right  of  implication 
in  question. 

Nor  is  there  anything  in  the  language  or  in  the  frame  of  the  present 
charter  which  would  seem  to  favor  the  idea  of  the  existence  of  an 
authority  in  the  corporation  to  borrow  money.  It  is  in  the  ordinary 
fashion,  giving  the  usual  prerogatives  of  administration,  improve* 
jcen:  and  police,   and  then  follows  the  important  clause,   declaring 


TOWN   OF   HACKETTSTOWN   V.   SWACKHAMER.  365 

"that  it  shall  be  lawful  for  the  common  council,  from  year  to  year,!  ^o^j-^ii^  *-^ 
to  vote  and  raise  by  tax  such  sum  or  sums  of  mone}'  as  they  shall  I  ^  N-dL.*^"! 
deem  necessary  and  proper."  Of  course  there  can  be  no  doubt  with!  "•^-v-t.^j^ 
respect  to  the  purposes  to  which  the  money  thus  authorized  to  be  ' 

levied  is  to  be  applied.     It  is  the  means  whereb}'  the  duties  of  local 
government  are  to  be  discharged.     There   is   no  limitation   on  the  * 

amount  that  may  be  raised.     But  there  is  a  limitation  on  the  method 
of  raising  it.     It  is  not  a  general  authority  to  raise  money  in  any 
mode  which  the  common  council  shall  devise.     The  restriction  is,  it       -     t\~ 
shall  be  raised  "  bjtax."     How  can  it  be  claimed,  then,  that  it  can  ''^^"^  ^^'J' 
be  raised   b}'  loaiT?     The  power  to  borrow  money   is,  in   a  certain 
sense,  a  larger  power  than  that  of  raising  money  by  taxation.     There 
is,  in  the  nature  of  the  thing,  an  immediate  check  to  excessive  tax- 
ation; that  IS,  the  resistance  of  the  parties  taxed.     There  is  none\^  '""'"^l^ 
such  in  the  power  to  borrow,  for  the  immediate  burthen  of  a  loan  isi  .^^..^jZ^Jta-tX 
but  slightly  felt.     Indeed,  it  is  difficult  to  imagine  any  greater  power-'  cso^^*..:,^  V 
that  one  person  can  confer  upon  another  than  an  unlimited  authority       v>j%S.fi  ir^ 
to  borrow  money.     It  is  a  common  thing  for  an  agent  to  have  the 
right  to  contract  debts  in  the  name  of  his  principal;  but  a  very  un- 1  a,»,,,^JLoo« 
common  thing  for  such  agent  to  be  authorized  to  borrow  money  ad  \      6^^<c,-v_« 
libitum.     A  more  dangerous  confidence  could  scarcely  be  given.     If  "^         "J 
the  municipal  authorities  under  one  of  these  charters,  which  in  these 
days  are  so  common,  have  this  power  to  borrow,  which  is  claimed  for 
them,   such  power  is  practically  unlimited.     I  see   no   limit  to  it, 
except  the  good  sense,  virtue  and  intelligence  of  the  depositaries  of 
it.     It  may  be  resorted  to  on  all  occasions  in  the  management  of  the 
affairs  of  the  city.     The  use  of  such  a  power  might,  at  the  will  of  the 
officials,  be  co-extensive  with  the  corporate  operations.     All  the  usual 
enterprises  and  improvements  could  be  undertaken  on  a  basis  of  a 
credit,   and  annual  taxation,    instead  of  being  made  the  basis  and 
measure  of  annual  expenditure,    could   readily  be  converted  into  a 
subordinate  auxiliary  to  an  extended  system  of  loans.     It  is  plain 
that  such  a  power  would  be  full  of  peril  to  the  owners  of  city  prop- 
erty, and  the  wildest  door  would  be  thus  thrown  open  to  extrava_gance3 
recklessness   and   frau^U-  Iti    my  judgment,    if   such   a  system   was 
judicially  recognized,  and  such  recognition  was  promulgated,  almost 
every  city  in  the  state  would  be  soon  overwhelmed  with  indebtedness. 
Nor  do  I  for  a  moment  believe  that  a  municipalit}'  could  obtain  from 
any  legislature  an  unrestricted  power  to  borrow  money.     It  is  prob- 
able that  such  a  boon  has  never  been  solicited  by  any  public  corpora- 
tion.    Our  statutory  history  evinces  clearly  that  the  power  in  question 
has   been   granted  with  a  stinted   hand   and   circumscribed   by  well 
defined  limitations.     My  judgment  is  entirely  averse  to  raising  up 
this  dangerous  power  by  implication.     If  the  rules  of  law  compelled 
\he  court  to  make  such  implication,  it  seems  to  me  such  result  would 
be  largely  injurious  to  the  well-being  of  the  state;  and  it  is,  there- 
fore, a  satisfaction  to  know  such  rules  of  law  do  not  exist.     The 


366 


TOWN   OF    HACKETTSTOWN   V.    SWACKHAMER. 


authority  to  tax  affords  a  sufficient  source  of  funds  requisite  for  all 

municipal  purposes,  and  the  consequence  is  there  can  be  no  inference 

■•    of  the  existence  of  the  superfluous  power  to  borrow  money  for  the 

same  end. 

.  An  examination  of  the  books  will  show  that  this  question  has  not 

'  ^-'V'"^       as  yet  received  much  judicial  consideration.     The  courts  of  Wiscon= 

^'~*'^  sin  and  Ohio  have  had  this  matter  before  them,  and  have  arrived  at  a 

1^  y^*^  result  the  opposite  of  that  which  has  just  been  stated. 


(-vV/«»^ 


I  have  care- 
fully weighed  the  arguments  of  these  learned  tribunals,  but  they  have 
failed  to  convince  my  understanding.  The  cases  referred  to  are 
those  of  Mills  v.   Gleason^  11    Wis.  470;  and  Bank  v.    CJiillicothe^ 

TiloQx  '  "*  Ohio,  part  11^  31.  As  a  counterpoise  to  these  views  stands  the 
weighty  opinion  of  Judge  Dilloiij^  in  his  treatise  on  Municipal  Cor- 
poratious,  Vol.  I,  §  81.  Much  emphasis  is  added  to  this  expression 
of  opinion,  from  the  fact  that  this  author  had  before  him,  at  the  time 
he  wrote,  the  opposing  cases  just  cited.  In  this  state  of  the  authority, 
it  cannot  be  claimed  that  the  principle  is  so  settled  that  the  judgment 
of  this  court  cannot  be  freely  exercised  with  respect  to  this  important 
subject.  My  conclusion  is  that  already  expressed,  that  a  right  to 
borrow  money  is  not  to  be  inferred  from  any  of  the  ordinary  powers 
conferred  in  the  charters  of  municipal  corporations,  and  that,  under 
ordinary  circumstances,  such  a  power  can  proceed  only  from  an 
express  grant  to  that  effect. 

Nor  do  I  think  that  it  adds  anything  to  the  right,  to  enforce  the 

note  in  this  case,  that  the  money  which  it  represents,  and  which  was 

borrowed,  has  been  expended  in  behalf  of  the  corporation  for  legiti- 

jnate  purposes.     The  argument  on  this  head  was  that,  as  the  money 

I'^'^^'^i^^^;^  ('■had  gone  for  the  benefit  of  the  corporation,  the  law,  upon  general 
principles, .  would  compel  its  re-payment.  If  this  is  so,  then  the 
rejection  of  an  implied  power  to  borrow  is  of  little  avail.  The  doc- 
trine, although  repudiated  in  the  abstract,  would  be  ratified  in  the 
concrete.     If  this  contention  is  tenable,  it  is  impossible  to  close  the 

^  eye  to  the  fact  that  the  loan,  although  held  illegal  and  void  in  its 

inception,  would  thus,  by  a  subsequent  act,  be  rendered  valid  and 

.<y>>-c^-«>A*MAii  force  able.     To  style  it,  aswas  done  in  the  argument,  money  had 

>.'C*J->H^k1 


Ip-O  >>/v/'-<S- 


received,  would  not  change  the  real  nature  of  the  transaction. 
To  permit  a  recovery  of  it  in  this  secondary  form  vv^ould  be,  virtually 
and  in  truth,  to  effectuate  a  loan,  and  all  the  evils  attendant  on  the 
power  to  borrow  money  in  an  unrestricted  form,  would  supervene. 
And  it  is  to  be  noted,  that  it  is  altogether  a  fallacy  to  argue  that  the 
law  will  raise  an  implied  promise  to  repay  the  money  after  it  has 
been  used.  The  impediment  to  such  a  theory  is,  that  the  corpora- 
tion has  not  the  competency  to  make  the  promise  thus  sought  to  be 
implied.  An  express  promise,  to  the  effect  contended  for,  would  be 
illegal,  and,  therefore,  clearly,  the  law  will  not  create  one  by  implica- 
tion.    It  is  not  the  case  of  a  principal  using  money  borrowed  by  his 


f^        agent  without  authority,   but  it  is  the  case  of  a  principal  who  is 


TOWN    OF   HACKETTSTOWN   V.    SWACKHAMER.  367'/ 

incapacitated  by  law  from  borrowing,  and  wlio,  therefore,  cannot 
legalize  the  act,  either  directly  or  by  circuity.  Perhaps  a  parallel  yr. -.-JU*^  <r 
instance  would  be  presented  in  case  of  a  loan  to  a  married  woman,at  A  V-^^  ^ 
common  law,  the  money  being  used  by  her.  Her  promise  to  repay  w^  c3-*6-t*-LoJ 
the  loan  would  be  void;  and,  from  the  fact  of  her  having  made  use  ^.a-idj/^^-Jc.  o 
of  the  money,  no  implied  promise  in  law  could  be  deduced. 

The  lender  of  such  money  may,  perhaps,  have  his  redress  against 
the  officer  of  the  corporation,  who  unjustifiably  held  himself  out  as 
possessed  of  the  right  to  take  the  loan  in  the  name  and  on  the  respon- 
sibility of  the  city,  or  by  a  recourse  to  equity,  asking  to  be  subro- 
gated to  the  rights  of  those  creditors  who  have  received  his  mone}', 
instead  of  having  their  debts  paid  by  the  corporation.  But  even  if 
the  holder  of  this  note  shbuld  be  remediless,  the  result  is  the  same.  '-\L, 

No  one  can  justly  reproach  the  law  for  not  providing  him  a  remedyi  r^^^"^^^^^ 
for  his  own   folly  or  indiscretion.     Such  folly  or  indiscretion  may  '  h'^'*^^\    < 


Jlji*~w»-»v»L< 


folly  or  indiscretion.     Such  folly  or  indiscretion  may 
have   enabled   the   city  officials    to  create   a  burthen,    or  may  have    ^0^^'*^? 
stimulated   them    to   acts   of    extravagance   which   would    not   have     tJu*.  Cit-  "J 
been  otherwise  created  or  done.     It  is  but  just  that  the  individual        y^>-a-«-^  ^ 
who  has  occasioned  the  evil  should  bear  the  loss.     But  whether  the 
owner  of  this  paper  be  remediless  or  not,  it  is  enough  for  the  present 
purpose  to  say  that  there  is  no  apparent  ground  on  which  this  money, 
thus  illegally  loaned,  can  be  recovered  by  an  action  at  law. 

The  establishment  of  these  general  principles  necessarily  leads  to 
a  decision  against  the  plaintiff  in  this  case.  But  there  are  narrower 
grounds  which  would  conduct  to  the  same  i-esult. 

On  the  admission  that  the  common  council,  which  is  the  ruling      \       ^S^^ji-^ 
power  of  the  corporation,  had  authority  to  contract  the  debt  in  ques-  j  S^js^.^  ^^-^^ 
tion,  it  was  not  shown  at  the  trial,  with  anything  like  legal  certainty,  i    vrv^'^yiA  ]^ 
that  this  loan  was  either  authorized  or  ratified  by  such  body.     The  )    ^-^  ^^ 
treasurer  obtained  the  money  and  gave  the  note.     The  proof  of  his 
authorization  consisted  in  his  statement  that  he  had  a  "  verbal  author- 
ity to  borrow  money  needed  for  the  purposes  of  the  town.'*     This  is     ^ 
entirely  too  loose.     Such  a  power  could  not  be  transferred,  except  by  |  ^vr*-*^^** 
a  formal  resolution,  passed  at  a  legal  meeting  of  the  council,  or  by  \  ^^^^^^V^Vc 
an  ordinance  duly  enacted.     Nor  was  it  shown  that  the  fact  of  the     ^sl--2oAv-X 
money's  having  been  expended  for  town  purposes,  was  ever  known 
to  the  council.     The  result  is  that,  at  the  trial,  there  was  proof  neither 
of  the  authorization  of  the  treasurer,  or  of  ratification  of   his  act. 
One  of  the  essentials  of  the  plaintiff's  case  was  wanting  to  it.     On 
this  ground  alone  there  must  be  a  new  trial. 

The  further  question  was  disi'ussed  at  the  bar,  whether  a  municipal 
corporation,  lacking  a  special  authorit}'  to  that  end,  can  execute  a 
promissory  note  I  have  examined  the  subject,  but  the  views  already 
expressed  render  it  unnecessary  to  pronounce  any  final  conclusion  with 
respect  to  it,  for  the  purposes  of  the  present  case.  I  may  say,  how- 
ever, that  my  present  view  is,  that  a  corporate  body  of  this  character, 
has  the  general  and  inherent  right  to  execute  a  note  as  a  voucher  of 


368  GREAT    FALLS   BANK   V.   TOWN    OF   FARMINGTON. 

-r-     ^^        indebtedness,  but  that  such  note  will  not  have  the  effect  when  in  the 
^jJ^^j»3i^^K.handsof  a  bona  fide  holder  before  maturity,  of  cutting  off  the  equities 
,,<jt   (Vv5V*_-  existing  between  the  maker  and  payee.     In  this  respect  I  fully  con- 
cur in  the  learned  opinion  of  Mr.  Justice  Bradley,  i-eceutly  read  in 
the  Supreme  Court  of  the  United  States,  in  the  case  of  The  Mayor  v. 
Eaij,  19  Wall,  468. 

Let  a  venire  de  novo  be  awarded 

---^     ^-Cx-^Y^~~av-^    \^  ^>-«»p-<./©-\.    (^A>''-«\A-«--*i}^  \p>r\)V5  ^J^Vjsr-s»  ^-o^AyS^A. 
GREAT   FALLS   BANK   v.    TOWN   OF   FARMINGTON. 


_^  ^^^^^  Wv.^^  V^  VSl^  -  l^^*^-     *^  ^^"^  Hampshire,  32.1 

^-^,aX_^i5liu»^    Assumpsit  on  a  promissory  note  of  the  defendants,  signed  by  a 
<  ^H*'*^'^    majority  of  the  selectmen,  by  order  and  in  behalf  of  the  town,  orig- 
J|p,i>ZoJ^  .  inally  payable  to  H.  Rollins"  &   Co.,  or  order,  in  six  months  from 
^      jj  date;  and   indorsed   to  plaintitis.     The  note  was  given  for  liquors 

^_  I  Y^  ^*  >  purchased  by  the  town  liquor  agent  upon  the  credit  of  the  town  ;  said 
-vi.^^-  ''""""'^  agent  so  purchasing  under  ^'^erbalauthority  from  the  selectmen.  The 
*^-^  ^'*^^^^*^ liquors  were  sold  to  the  agent  by  Rollins  &,  Co.  in  Massachusetts. 
>^^\rwAO-M.  j^Qiiiug  ^  Qq^  were  not  licensed  to  sell  liquors  in  Massachusetts,  and 
*  ^^"'^C^^?^  the  sale  was  in  violation  of  the  Massachusetts  statute.  The  plain- 
^'"'^^"^  ^  tiffs  purchased  the  note  for  value,  before  maturity,  and  without  any 
'**"=*-*  ^^  ^"^  notice  or  knowledge  of  the  consideration  for  which  it  had  been  given. 
^^%  ^r"**'*'^  The  foregoing  facts  appearing  in  evidence,  a  verdict  was  taken  for 
\jl  '' Cl  rOP^^^^^^^^'  s-iid  the  questions  of  law  were  reserved. 
^^^^  »  ^^^     Wells  &  Eastman,  for  plaintiffs. 

-■  .V    Q,  ]\[,  JSastnuni,  Christie  &  Kingman,  for  defendants. 

fk  (>oc*W^*^-^o^^^^'  J-  -^y  t^^  express  provisions  of  the  act  of  July  14,  1855 
(Laws  of  1855,  ch.  1658),  it  was  made  the  duty  of  every  city,  town 
and  place  in  this  State  to  establish  one  or  more  agencies  "  for  the  ~-5  V^'* 
purchase  of  spirituous  and  intoxicating  liquors,  and  for  the  sale  7 
thereof  within  such  city,  town  or  place,  to  be  used  in  the  arts,  or  for  (^ 
medicinal,  mechanical  and  chemical  purposes;  and  wine  for  the  com-  |  * 
memoration  of  the  Lord's  Supper;  and  for  no  other  use  or  purpose  --^ 
whatevei-."  The  selectmen  were  liable  to  indictment  for  refusing  to  cJi. 
appoint  an  agent,  even  where  the  town  had  refused  to  provide  the 
means  to  purchase  the  stock  in  trade  of  the  agency.  State  v.  Wood- 
burij,  35  N.  H.  230. 

The  selectmen  of  Farmington,  or  the  liquor  agent  by  them  appointed, 
might,  therefore,  properly  purchase,  upon  the  credit  of  the  town,  the 
liquors  necessary  to  supply  the  agency  which  the  selectmen  were 
required  to  establish.  The  town  was  legally  liable  to  furnish  the 
agency  with  such  liquors,  their  credit  might  be  pledged  to  procure 
them,  and  the  selectmen,  as  the  general  prudential  and  financial  agents 

1  Statement  abridged.     Portions  of  opinion  omitted  —  Ed. 


GREAT   FALLS   BANK   V.    TOWN    OF   FARMINGTON.  369 

of  the  town,  might,  therefore,  rightfully  bind  the  town  by  a  note 
given  for  the  price  of  the  liquors  necessary  for  that  purpose.  It  was  ^  \L»kajX^^^st 
within  the  scope  of  their  authority  as  selectmen  to  bind  the  town  Ijy  /  v-'vyyiU^^ 
h  contract  to  pay  for  liquors  furnisbed  tlie  agency  ot_tEe~town  bv:  l^J^^^^^y^-^ 
them  established  without  any  express  authority  from  the  town  for  )  \^vx.''J-*v~^ 
that  purpose.^     Andovei'  v.    Grafton.,   7  N.   H.    298;   Savuf/e  v.    JRix,  ^^"^ 

9  N.  H.  26');  Glidden  v.  Unity,  33  N.  H.  571;  Hanover  v.  Weare, 
2  N.  H.  131;  Hanover  v.  Ea.ton,  3  N.  H.  38;  Ang.  «fe  Am.  on  Corp. 
212,  and  authorities  cited;  Comp.  Laws,  ch.  36,  sec.  2. 

The  selectmen  of  Farmington  having  had  authority  to  give  the  note 
in  suit,  and  the  plaintiffs  being  innocent  indorsees  and  purchasers 
thereof  for  value  before  its  maturity,  in  the  ordinary  course  of  busi- 
ness, without  notice  or  knowledge  of  any  illegality  in  its  considera- 
tion, upon  general  principles,  this  action  may  well  be  maintained, 
notwithstanding  the  consideration  of  the  note  was  the  sale  of  liquors 
in  violation  of  the  statute  of  Massachusetts;  for  generally  the  ille- 
gality of  the  consideration  of  a  negotiable  promissory  note  is  no 
defence  to  it   in  the  hands  of  an   innocent  indorsee   and  purchaser 

-^ — ' ^  '      ' 

for  val  le.  Doe  v.  Burnliam,  31  N.  H.  426,  and  authorities;  Crosby 
V.  Grant,  36  N.  H.  273. 

But  the  defendants  contend  that,  although  the  general  rule  be  as 
■we  have  stated  it,  they  stand  upon  a  different  footing,  inasmuch  as 
if  Ithey  may  be  holden  to  pay  this  note  to  the  plaintiffs,  they  are  in 
a  worse  condition  in  relation  to  the  debt  than  they  would  have  been 
if  a  negotiable  note  had  not  been  given  for  it,  and  therefore  the 
selectmen  had  no  authority  to  give  the  note.  The  position  seems  to 
rest  upon  a  remark  of  Parher,  J.,  in  Andover  v.  Grafton,  7  N.  H. 
298,  based  upon  the  authority  of  Slark  v.  The  Highgate  Archway 
Comjmny;  5  Taunt.  792 ;  1  E.  C.  L.  268. 

[After  stating  the  last  named  case.] 

It  is  quite  apparent  that  the  whole  extent  of  the  authority  of  this 
case  goes  only  to  the  point  that  corporations,  like  natural  persons, 
are  bound  by  the  acts  and  contracts  of  their  agents,  only  when  those 
acts  are  done  and  those  conti-acts  are  made  within  the  scope  of  their 
authority;  and  that  whenever  a  corporation  is  sued  upon  such  a  con- 
tract, whether  it  be  a  negotiable  promissory  note,  or  any  other  instru- 
ment, they  are  at  liberty  to  show  that  the  agents  making  it  had  no 
authority  to  execute  it,  in  whosesoever  hands  it  may  be;  because, 
if  the  agents  had  only  a  restricted  authority,  a  contract  made  by  them 
beyond  its  limits  could  impose  no  obligation  on  the  corporation;  and 
whoever  takes  a  contract  executed  by  an  agent,  takes  it  subject  to 
the  risk  of  the  authority  of  that  agent  to  execute  it.  This  doctrine 
is  too  familiar  to  need  the  citation  of  authorities.  The  subject  is 
fully  discussed,  and  most  of  the  American  authorities  are  collected, 
in  Ang.  &  Am.  on  Corp.,  2d  ed.,  213,  216,  229,  233,  239-246. 

It  seems  to  us  the  decision  in  Andover  v.  Grafton  can  and  does  go 


370 


GEE  AT   FALLS   BANK    V.    TOWN   OF   FARMINGTON. 


no  farther  than  the  principle  to  which  we  have  adverted.  It  is  true, 
the  learned  Judge  Farker  not  only  says:  "An  indorsee  who  should 
take  such  a  note  [one  given  by  the  selectmen  of  a  town  in  behalf  of 
the  corporation],  even  before  due,  would  receive  it  subject  to  a  lia- 
bility to  make  the  same  proof  respecting  the  authority  of  the  select- 
men to  execute  it  in  that  particular  case,  as  would  be  required  of 
the  promisee;"  but  adds,  "and  of  course  must  be  chargeable  with 
notice  of  all  the  facts,  and  the  note  in  his  hands  be  liable  to  the  same 
defence  as  in  the  hands  of  the  original  promisee;"  and  then  cites 
Slark  V.  The  Hlghgate  Archway  Covipariy^  as  authority  to  sustain 
his  position. 

/  It  is  undoubtedly  true,  as  a  general  principle,  that  whatever  is 
\jiotice  enough  to  excite  attention,  and  put  the  party  upon  his  guard, 
and  call  for  inquiry,  is  notice  of  every  thing  to  which  such  inquiry 
would  naturally  have  led.  Where  a  person  has  sufficient  information 
to  lead  him  to  a  fact,  he  shall  be  deemed  conversant  of  it.  Kennedy 
V.  Green,  3  Myl.  &  K.  719,  721,  722;  The  Ploughboy,  1  Gall.  41^; 
Hlnde  V.  Vattier,  1  M'Lean  118;  Bowman  v.  Walker,  2  M'Lean 
376;  Sugd.  Vend.  &  Purch.  1052,  and  cases  cited;  Carr  v.  Hilton, 
1  Curt.  C.  C.  390 ;  Hastings  v.  Spe7icer\  1  Curt.  C.  C.  504. 

In  the  case  before  us  this  rule  does  not  apply  to  the  matter  of 
defence  relied  upon.     The  note  was  signed  by  the  selectmen  for  the 

^defendant  town,  and  therefore  it  was  incumbent  upon_the^  plaintiffs 
yJC'S^  i-f^^-^l  to  inquire  whether  it  was  signed  by  them  within  the  scope  of  their 
arrttrorlty.  aud_giyen  for^a  debt  for  which  the  credit  of  the  town_could 
jToperly  be  pledged  by  them,  and  this  was  all.     They  were  not  bound 
boinc[uire  and  ascertain  whether  or  not  the  liquors  purchased  to  enable 

Ithe  town  to  perforna^  the  duties  imposed  upon  it  by  atntnte,  were  ppr- 

[chased  in  violation  of  a  ja^vv_of  Massachusetts,  or  not,  because  that 
[uestion  was  not  one  material  to  the  authority  of  the  selectmen  to 

'give  the  note,  mhey  examined  the  statute  under  which  the  town 
acted,  they  t'ound  no  special  provision  made  for  the  supply  of  the 
town  agents  with  liquors,  and  being  satisfied  that  the  note  was  given 
by  the  selectmen  within  the  scope  of  their  authority,  for  liquors 
actually  received  by  the  town  to  its  own  use,  they  were  not  required 
to  go  further,  and  inquire  into  the  provisions  of  the  statutes  of  another 
State,  and  into  the  question  whether  or  not  the  sale  of  the  liquors  for 
the  price  of  which  the  note  was  given  was  thereby  prohibited ;  and  if 
BO,  still  further,  whether  or  not  our  courts  would  enforce  the  prohibi- 
tion here.  They  had  no  notice  of  any  such  facts,  nothing  to  call 
their  attention  to  them  and  put  them  upon  their  guard  in  relation  to 
them. 

To  hold  that  if  the  defendants  would  be  worse  off  in  defending 
against  the  note,  than  they  would  have  been  in  defending  against  the 
account  for  which  it  was  given,  the  selectmen  had  no  authority  to 
give  it,  would  make  the  authority  of  the  agents  depend  upon  the 
result  of   subsequent  proceedings  against  their  principal,   and  not 


CITY    OF   BRENHAM   V.    GERMAN    AMERICAN    BANK.  371 

Qpon  the  question  whether  or  not  they  were  acting  at  the  time  of  the 
transaction  within  the  range  of  their  legal  authority.  This  would  be 
quite  absurd.  If  the  selectmen  had  authority  to  give  a  negotiable 
note  for  the  debt  incurred  in  the  purchase  of  liquor  for  the  town 
agency,  they  had  that  authority  none  the  less,  because,  upon  well 
established  principles,  that  note  in  the  hands  of  a  bond  fide  indorsee 
for  a  valuable  consideration,  Avithout  notice  and  before  maturity, 
might  not  be  open  to  some  defences  to  which  it  might  have  been  sub= 
ject  in  the  hands  of  the  original  payee,  or  which  might  have  been 
made  to  a  suit  to  enforce  the  debt  for  which  the  note  was  given. 
The  town  is  a  corporation,  and  like  all  other  corporations  must  be 
subject  to  the  same  rules  of  law  as  are  applicable  to  individuals.  It 
is  well  settled  that  an  individual  who  gives  his  note  for  liquors  sold 
in  violation  of  law,  cannot  be  permiirteclto~sEowlIie~iTregaI  consider- 
ation as  a  defence  to  a  suit  upon  the  note  by  an  actual  purchaser 
_thereof  before  maturity  and  without  notice.  Whether  he  gave  the 
note  personally,  or  by  an  authorized  agent,  could  make  no  difference. 
So  it  must  be  with  a  town  or  other  corporation.  The  fact  that  the 
note  is  executed  by  an  agent  is  apparent  upon  its  face ;  of  course  the 
purchaser  has  notice,  and  buys  the  note  at  the  risk  of  the  authority 
of  the  agent  to  give  it,  but  this  is  all.  He  has  no  notice,  express  or 
implied,  of  any  illegality  in  the  consideration,  or  in  the  sale  whereby 
the  debt  was  created  for  which  the  note  was  given,  and  is  not  there- 
fore to  hold  it  subject  to  any  defence  of  that  character. 
With  these  views,  there  must  be 

Judgment  upon  the  verdict 


-^5®^ 


CITY  OF  BRENHAM  v.    GERMAN  ^AMERICAN  BANK.     (^(l,«vVW 

1892.     144  U.  S.  173.1  V^^>^^**-«     '^^^f^ 

Error  to  U.  S.  Circuit  Court  for  Western  District  of  Texas.          "  AJ-cr~^./^„3^^   l^ 

Action  by  bank  against  the  city  of  Brenham  to  recover  upon  con-  V^-^^^i^j^'^^'a^i-a'  , 

pons  cut  from  negotiable  bonds  issued  by  it.     The  act  incorporating  >i ^^^tt-'-Q^  <^ 

the  city  contains  the  following  provisions: —  , 

Art.  3,  Sect.  2:  ''That  the  city  council  shall  have  the  power  and  H^M„V^^ 

authority  to  borrow  for  general  purposes  not  exceeding  ($15,000)  <fW-cA*fl     Vju 

fifteen  thousand  dollars  on  the  credit  of  said  city."  o-a^r^.  vvo-^ 


*-( 


Art.  7,  Sect.  1:  "  Bonds  of  the  corporation  of  the  city  of  Brenham 
shall  not  be  subject  to  tax  under  this  act."  r^.^^:. 

The  Texas  Constitution  of  1876  provides  that  no  city  "  shall  here-     y!rt2~~^  i 
after  become  a  subscriber  to  the  capital  of  any  private  corporation     v'''**'^^^'^-**^ 
or  association,  or  make  any  appropriation  or  donation  to  the  same,  or 
in  anywise  loan  its  credit;  ..." 

1  Statement  abridged.    Portions  of  opinions  omitted.  —  Ed. 


372  CITY    OF   BKENHAM   V.    GERMAN    AMERICAN    BANK. 

The  bonds  in  question,  to  the  amount  of  ^15,000,  were  issued  in 
1879,  "  for  general  purposes,"  under  a  city  ordinance. 

The  plaintiffs  claimed  to  have  the  rights  of  bo7ia  fide  purchasers, 
for  value,  before  maturity. 

Upon  the  trial  the  court  charged  the  jury,  that  the  power  in  the 
city  to  borrow  money  carried  witJi  it  the  authority  to  issue  the  bonds, 
and  that  the  defendant  had  capacity  to  issue  the  bonds  in  question 
as  commercial  paper,  and  bind  itself  to  pay  them  and  the  coupons. 
To  this  ruling,  the  defendant  excepted.  Verdict  for  plaintiff,  and 
judgment  thereon.  ' 

>S'.  R.  Fisher,  for  plaintiff  in  error. 

A.  H.  Garland  and  Heyiry  Saz/les,  for  defendant  in  error. 

Blatchford,  J.  .  .  .  The  principal  contention  on  the  part  ol  the 
riefendant  is  that  it  was  without  authority  to  issue  the  bonds,  and 
that  they  were  void  for  all  purposes  and  in  the  hands  of  all  persons. 

There  is  nothing  in  the  charter  of  the  defendant  which  gives  it  any 

power  to  issue  negotiable,  interest- bearing  bonds  of  the  character  of 

Those  involved  in  the  present  case.     The  only  authority  in  the  charter 

that  is  relied  upon  is  the  power  given  to  borrow,  for  general  purposes, 

not  exceeding  $15,000,  on  the  credit  of  the  city.   .   .   . 

That  in  exercising  its  power  to  borrow  not  exceeding  $15,000  on 

its  credit,  for  general  purposes,  the  city  could  give  to  the  lender,  as 

a  voucher  for  the  repayment  of  the  money,  evidence  of  indebtedness 

!L^^  V^  ^>y*^  in  the  shape  of  non-negotiable  paper,  is  quite  clear;  but  that  does 

"T'^^jj^i-^^H'^^not  cover  the  right  to  issue  negotiable  paper  or  bonds,  unimpeach- 

'  V^^  YrAs»      ^^^®   ^^  ^^^  hands   of  a  bo7ia  fide  holder.     In   the  present  case,   it 

K,^,_«j,^/>^  .       appears  that  Mensing  bought  from  the  defendant  65000  of  the  bonds 

^  at  95  cents  on  the  dollar,  and  that  other  $7000  of  the  bonds  were  sold 

by  the  city  for  the  same  price,  it  thus  receiving  only  $11,400  for 

$12,000  of  the  bonds,  and  suffering  a  discount  on  them  of  $600.     The 

city  thus  agreed  to  pay  $12,000,   and  interest  thereon,  for  $11,400 

borrowed.     This  shows  the  evil  working  of  the  issue  of  bonds  for 

more  than  the  amount  of  money  borrowed. 

a*^  wxaA\X>   r  ^^  appears  by  the  record  that  depot  grounds  in,  and  the  right  of 

Mt. .  *>Y^^  y^^  through,  the  city  of  Brenham  were  bought  for  the  Gulf,  CoTcrado 

*"-^^i  -»\fv>-   [and  Santa  Fe  Railroad  Company  with  money  realized  from,  the  sale 

6cs,^V-         lof  bonds  issued  under  the  ordinance  of  June  7,  1879,  and  that  $3000 

V)f  such  bonds  were  used  by  the  city  for  fire  department  purposes. 

The  power  to  borrow  the  $11,400  would  not  have  been  nugatory, 
unaccompanied  by  the  power  to  issue  negotiable  bonds  therefor. 
Merrill  V.  Monticello,  138  U.  S.  673,  687;  Williams  v.  Davidson., 
43  Texas,  1,  33,  34;  City  of  Clehurne  v.  Eailroad  Company,  QQ 
Texas,  461;  1  Dillon  on  Municipal  Corp.  4th  ed.  §  89,  and  notes; 
§  91,  n.  2;  §  126,  n.  1 ;  §§  507,  507  a. 

The  confining  of  the  power  in  the  present  case  to  a  borrowing  of 
money  for  general  purposes  on  the  credit  of  the  city,  limits  it  to  the 


CITY   OF   BRENHAM   V.    GERMAN    AMERICAN    BANK.  873 

power  to  borrow  money  for  ordinary  governmental  purposes,  such  as 
are  generally  carried  out  with  revenues  derived  from  taxation;  and 
,the  presumption  is  that  the  grant  of  the  power  was  intended  to  con- 
fer the  right  to  borrow  money  in  anticipation  of  the  receipt  of  revenue 
taxes,  and  not  to  plunge  the  municipal  corporation  into  a  debt  on 
which  interest  must  be  paid  at  the  rate  of  ten  per  centum  per  annum, 
Bemi-annually,  for  at  least  ten  years.  It  is  easy  for  the  legislatura 
to  confer  upon  a  municipality,  when  it  is  constitutional  to  do  so,  the 
power  to  issue  negotiable  bonds;  and,  under  the  well-settled  rule 
that  any  doubt  as  to  the  existence  of  such  power  ought  to  be  deter- 
mined against  its  existence,  it  ought  not  to  be  held  to  exist  in  the 
present  case. 

A  review  of  the  cases  on  this  subject  in  this  court  will  be  useful. 

[The  learned  Judge  then  cited,  and  commented  upon,  liogers  v. 
Burlington,  3  Wallace,  654;  Mitchell  v.  Burlington,  4  Wallace,  270; 
Police  Jury  v.  Britton,  15  Wallace,  5G6;  Claiborne  County  v.  Brooks^ 
111  U.  S.  400;  Concord  v.  Rohiuson,  121  U.  S.  165;  Kelley  v.  Milany 
127  U.  S.  139;  Norton  v.  Dyershurg,  127  U.  S.  160;  Young  v.  Claren- 
don Toivnshij),  132  U.  S.  340;  and  Hill  v.  Memphis,  134  U.  S.  198. 
He  quoted,  inter  alia,  the  statement  of  Mr.  Justice  Bradley  in  Police 
Jury  V.  Britton  —  that  it  was  one  thing  for  county  and  parish  trus- 
tees to  have  the  power  to  incur  obligations  for  work  actually  done  in 
behalf  of  the  county  or  parish,  and  to  give  proper  vouchers  therefor, 
and  a  totally  different  thing  to  have  the  power  of  issuing  unimpeach- 
able paper  obligations,  which  might  be  multiplied  to  an  indefinite 
extent.] 

In  Merrill  v.  Monticello,  138  U.  S.  673,  687,  691,  it  was  held  that  J 
the  implied  power  of  a  municipal  corporation  to  borrow  money  to/ 
v-nable  it  to  execute  the  powers  expressly  conferred  upon  it  by  law,/ 
if  existing  at  all,  did  not  authorize  it  to  create  an.d  issue  negotiable/ 
securities  to  be  sold  in  the  market  and  to  be  taken  by  the  purchasei 
freed  from  the  equities  that  might  be  set  up  by  the  maker;  and  that  to 
borrow  money,  and  to  give  a  bond  or  obligation  therefor  which  might 
circulate  in  the  market  as  a  negotiable  security,  freed  from  any  equi- 
ties that  might  be  set  up  by  the  maker  of  it,  were  essentially  different 
transactions  in  their  nature  and  legal  effect.     In  the  opinion  of  the 
court,  which  was  delivered  by  Mr.  Justice  I^amar,  the  cases  of  Police 
Jury  V.  Britton,  Claiborne  County  v.  Broohs,  Kelley  v.  Milan,  Young 
V.  Clarendon  Township  and  Hill  v.  Mempliis  were  cited  with  approval. 
It  was  added:  "  It  is  admitted  that  the  power  to  borrow  money,  or 
to   incur   indebtedness,  carries  with  it  the  power  to  issue  the  usual 
evidences  of  indebtedness,  by  the  corporation,  to  the  lender  or  other 
creditor.     Such  evidences  may  be  in  the  form  of  promissory  notes, 
waiTants,  and,  perhaps,  most  generally,  in  that  of  a  bond.     But  there 
is  a  marked  legal  difference  between  the  power  to  give  a  note  to  a 
lender  for  the  amount  of  money  borrowed,  or  to  a  creditor  for  the 
amount  due,  and  the  power  to  issue  for  sale,  in  open  market,  a  bond, 


374  CITY   OF   BRENHAM   V.   GERMAN   AMERICAN   BANK. 

as  a  commercial  security,  with  immunity,  in  the  hands  of  a  bona  fide 
holder  for  value,  from  equitable  defences.  The  plaintiff  in  error 
contends  that  there  is  no  legal  or  substantial  difference  between  the 
two;  that  the  issuing  and  disposal  of  bonds  in  market,  though  in 
common  parlance,  and  sometimes  in  legislative  enactment,  called 
a  sale,  is  not  so  in  fact;  and  that  the  so-called  purchaser  who  takes 
the  bond  and  advances  his  money  for  it  is  actually  a  lender,  as 
much  so  as  a  person  who  takes  a  bond  payable  to  him  in  his  own 
name." 

The  opinion  then  stated  that  the  logical  result  of  the  doctrines  an- 
nounced in  the  five  cases  which  it  cited  clearly  showed  that  the  bonds 
sued  on  in  the  case  of  Merrill  v.  Monticello  were  invalid,  and  added : 
"  It  does  not  follow  that,  because  the  town  of  Monticello  had  the 
right  to  contract  a  loan,  it  had,  therefore,  the  right  to  issue  negotia- 
ble bonds  and  put  them  on  the  market  as  evidences  of  such  loan.  To 
borrow  money,  and  to  give  a  bond  or  obligation  therefor  which  may 
circulate  in  the  market  as  a  negotiable  security,  freed  from  any  equi- 
ties  that  may  be  set  up  By  the  maker  of  il^^re,  in  their  natui'e  and  in~ 
their  legal  effect,  essentially  different  transactions.  In  the  present 
case,  all  that  can  be  contended  for  is,  that  the  town  had  the  power  to 
contract  a  loan,  under  certain  specified  restrictions  and  limitations. 
Nowhere  in  the  statute  is  there  any  express  power  given  to  issue 
negotiable  bonds  as  evidence  of  such  loan.  Nor  can  such  power  be 
implied,  because  the  existence  of  it  is  not  necessary  to  carry  out  any 

I  of  the  purposes  of  the  municipality.  It  is  true  that  there  is  a  con- 
siderable number  of  cases,  many  of  which  are  cited  in  the  brief  of 
counsel  for  plaintiff  in  error,  which  hold  a  contrary  doctrine.  But 
the  view  taken  by  this  court  in  the  cases  above  cited  and  others 
seems  to  us  more  in  keeping  with  the  well  recognized  and  settled 
principles  of  the  law  of  municipal  corporations." 

We,  therefore,  must  regard  the  cases  of  Rogers  v.  Burlington  and 
Mitchell  V.  Burlington  as  overruled  in  the  particular  referred  to,  by 
later  cases  in  this  court.  See  1  Dillon's  Mun.  Cor.  4th  ed.  §§  507. 
507  a. 

•  ••••••• 

r     We  cannot  regard  the  pi'ovision  in  the  charter  oi   the  city,  that 

I  bonds   of  the  corporation  of  the  city  "  shall  not  be  .subject  to  tax 

I  under  this  act,"  as  recognizing  the  validity  of  the  bonds  in  question. 

I  Whatever  that  provision  may  mean,  it  cannot  include  bonds  unlaw- 

Vfully  issued, 

As_thei:e__gas_jio_authority  to  issue  the  bonds,  even  a  boiia  fide 
bolder  of  them  cannot  have  a  right  to  recover  upon  them  or  their_ 
coupons.  Marsh  v.  Fulton  County,  10  Wall.  676;  East  Oakland  y. 
Skinner,  94  U.  S.  255;  Buchanan  v.  Litchfield,  102  U.  S.  278;  Hayes 
V.  Holly  Springs,  114  U.  S.  120;  Daviess  County  v.  Dickinson,  117 
r.  8.  657;  Hopper  v.  Covington,  118  U.  S.  148,  151;  Mei-rill  v. 
Monticello,  138  U,  S.  673,  681,  682. 


CITY    OF    BEENHAM   V.    GERMAN    AMERICAN    BANK.  375 

As  the  action  here  is  directly  upon  the  coupons,  and  there  is  no 
right  of  recoyery  upon  them,  the  judgment  must  be 
Reversed,  and  case  remanded  to  the  Circuit  Court.,  with  a  direction  .  .  . 

to  enter  .   .   .   a  (jeneral  judgment  for  tlie  defendant.^ 

Harlan,  J.  (with  whom  concurred  Brewer,  J.,  -and  Brown,  J.),  \ 
dissenting. 

[After  reviewing  various  cases  cited  in  the  majority  opinion.] 

It  thus  appears  that  in  no  one  of  the  above  cases,  decided  since 
Rogers  v.  Burlington.,  was  there  any  question  as  to  negotiable  secur- 
ities being  issued  under  an  express  power  to  borrow  money ;  and  that 
some  of  them  concede  that  such  a  power  carries  with  it  authority  to 
give  a  negotiable  paper  for  money  borrowed. 

The  case  which  seems  to  be  much  relied  upon  to  support  the  present 
judgment  is  Merrill  v.  Monticello.  But  we  submit  that  it  does  not 
sustain  the  broad  doctrine  that  negotiable  securities  may  not  be 
issued  in  execution  of  an  express  power  to  borrow  money.  What 
could  or  could  not  be  done,  under  such  a  power,  was  not  a  question 
involved  in  that  case.  The  question  was  whether  authority  in  tha 
town  of  Monticello  to  issue  negotiable  bonds  could  be  implied.,  not 
from  an  express,  but  from  an  implied  power  to  borrow  money. 

[After  commenting  upon  Merrill  v.  Monticello,  138  U.  S.  673,  and 
Citg  of  Savannah  v.  Kelhj,  108  U.  S.  184.] 

It  is,  perhaps,  proper  to  say  that  our  views  find  support  in  the 
admirable  commentaries  of  Judge  Dillon  on  the  Law  of  Municipal 
Corporations.  The  court  refers  to  sections  507  and  507  a  of  those 
Commentaries.  But  those  sections  do  not,  in  any  degree,  support 
the  conclusion  reached  in  this  case.  The  doctrine  which  the  learned 
author  declares,  in  those  sections,  to  be  alike  unsound  and  dangerous, 
is,  "  that  a  public  or  municipal  corporation  possesses  the  implied 
pover  to  borrow  money  for  its  ordinary  purposes,  and  as  incidental 
thereto  the  power  to  issue  commercial  securities,  that  is,  paper  which 
cuts  off  defences  when  it  is  in  the  hands  of  a  holder  for  value  acquired 
before  it  is  due."  But  Judge  Dillon,  while  agreeing  that  the  power 
to  issue  commercial  paper,  unimpeachable  in  the  hands  of  a  bona 
fide  holder,  is  not  among  the  ordinary  incidental  powers  of  a  public 
municipal  corporation,  and  must  be  conferred  expressly,  or  by  fair 
implication,  says,  after  a  careful  review  of  the  authorities:  "Express 
power  to  borrou'  money.,  perhaps,  in  all  cases,  but  especiallj'  if  con- 
ferred to  effect  objects  for  which  large  or  unusual  sums  are  required, 
as,  for  example,  subscriptions  to  aid  railways  and  other  public 
Improvements,  will  ordinarily  be  taken,  if  there  be  nothing  in  the 
legislation  to  negative  the  inference,  to  include  the  power  (the  same 
as  if  conferred  upon  a  corporation  organized  for  pecuniary  profit) 
to  issue  negotiable  paper  with  all   the   incidents  of  negotiability." 

i  In  144  U.  S.  549,  a  petition  for  rehearing  was  denied  ;  but  the  above  order  was 
modified.  The  judgment  below  was  reversed,  and  the  cause  was  remanded  for  further 
proceedings  not  incousistent  with  the  above  opinion  of  Blatchford,  J.  —  Ed. 


3Xxj!v<kJaor 


376  CITY   OF    BRENHAM   V.    GERMAN    AMERICAN   BANK. 

1  Dillon's  Mun.  Corp.  §  125,  4th  ed.  It  is  eminently  just  to  apply 
that  rule  in  the  present  case,  because  the  act  giving  the  city  of 
Brenham  authority  to  borrow,  not  exceeding  $15,000,  for  general 
purposes,  expressly  provided  that  its  Jionds  should  not  be  subject  to 
tax  under  that  act.  Such  a  provision  could  have  had  reference  only 
to  negotiable  bonds,  which  would  be  put  upon  the  market  for  the 
purpose  of  raising  money. 

It  seems  to  us  that  the  court,  in  the  present  case,  announces  for  the 
nrst  time  that  an  express  power  in  a  municipal  corporation,  to  borrow 
money,  for  corporate  or  genei'al  purposes,  does  not,  under  any  cir- 
cumstances, carry  with  it,  by  implication,  authority  to  execute  a 
negotiable  promissory  note  or  bond  for  the  money  so  borrowed,  and 
that  any  such  note  or  bond  is  void  in  the  hands  of  a  ho7ia  fide  holder 
for  value.  There  are,  perhaps,  few  municipal  corporations  anywhere 
that  have  not,  under  some  circumstances,  and  within  prescribed  limits 
as  to  amount,  express  authority  to  borrow  money  for  legitimate, 
corporate  purposes.  While  this  authority  may  be  abused,  it  is  often 
vital  to  the  public  interests  that  it  be  exercised.  But  if  it  may  not 
be  exercised  by  giving  negotiable  notes  or  bonds  as  evidence  of  the 
indebtedness  so  created  —  which  is  the  mode  usually  adopted  in  such 
cases  —  the  power  to  borrow,  however  urgent  the  necessity,  will  be 
of  little  practical  value.  Those  who  have  money  to  lend  will  not  lend 
it  upon  mere  vouchers  or  certificates  of  indebtedness.  The  aggregate 
amount  of  negotiable  notes  and  bonds,  executed  by  municipal  corpo- 
rations, for  legitimate  purposes,  under  express  power  to  borrow 
money  simply,  and  now  outstanding  in  every  part  of  the  country, 
must  be  enormous.  A  declaration  by  this  court  that  such  notes  and 
bonds  are  void,  because  of  the  absence  of  express  legislative  authority 
to  execute  negotiable  instruments  for  the  money  borrowed,  will,  we 
fear,  produce  incalculable  mischief.  Believing  the  doctrine  announced 
by  the  court  to  be  unsound,  upon  principle  and  authority,  we  do  not 
feel  at  liberty  to  withhold  an  expression  of  our  dissent  from  the 
opinion. 


MOLLOY  V.   NEW   ROCHELLE.  377 

MOLLOY  ..  NEW  ROCHELLE.  ^ti;^:SiS'cJkJ^^ 
1910.     198  N.  Y.  402.  ^!Ii^i^!S.  ^t^^I^ 

Appeal  from  a  judgment  entered  January  30,  1908,  upon  an  order    VA-.-v*Ln->^ 
of  the  Appellate  Division  of  the  Supreme  Court  in  the  second  judicial    ""■^'--jit-cfijL^ 
department,  which  overruled  plaintiff's  exceptions  ordered  to  be  heard  VrvjjL,,     fc, 
in  the  first  instance  by  the  Appellate  Division  and  directed  a  dismissal   ■^'-5>s«  ^^v~k^ 
of  the  complaint.  ^-""^-^    '-j-o-o 

The  defendant's  charter  provides  :  "  "Whenever  any  expenditures  to  ^**^  ^^^^ 
be  made  or  incurred  by  the  common  council  or  city  board  or  any  city 
officer  in  behalf  of  the  city  for  work  to  be  done,  or  materials  or  sup- 
plies to  be  furnished,  .  .  .  shall  exceed  two  hundred  dollars,  the 
city  clerk  shall  advertise  for  and  receive  proposals  therefor,  in  such 
manner  as  the  common  council,  or' as  the  board  or  officer  charged  with 
making  such  contract  shall  prescribe,  and  the  contract  therefor  shall  | .  r  «  . 
be  let  to  the  lowest  responsible  bidder,  who  shall  execute  a  bond  to  /~~^p  * 
said  city  with  one  or  more  sureties,  being  freeholders,  for  the  faithful  '^-'^■*-^^~^  ^ 
performance  of  the  contract."      Laws  of  1899,   chapter  128,   section    \  ^'^^  *-«-t. 

33  6-ft->--t.*-e». 

The  city  clerk  in  pursuance  of  said  statute  and  resolutions  of  the  <^_jq^,3„^^-_  5 
common  council  of  the  defendant  published  a  notice  as  follows  ry^^  co-Jt/v.©- 
"  Sealed  proposals  will  be  received  by  the  city  clerk  at  his  office 
.  ,  .  for  the  regulating  and  grading  of  .  .  .  in  the  city  of  New 
Rochelle  upon  plans  and  specifications  prepared  by  the  city  engineer 
which  may  be  procured  upon  application  at  his  office  in  the  city  hall 
building.  ...  A  certified  check  to  the  amount  of  $1,000  must 
accompany  each  bid.  .  .  .  The  common  council  reserves  the 
right  to  reject  any  and  all  bids.     .     .     . "  0^^xrrx.r>^i 

In  pursuance  of  such  notice  six  bids  were  filed  in  accordance  with  "H^^c  tjsj^ 
said  advertisement.  The  bids  were  in  items  which  required  a  compu- 
tation to  determine  the  aggregate  amount  of  each  bid.  Accompanying 
the  plaintiff's  bid  was  certified  check  for  $1,000  and  a  written  state- 
ment by  a  responsible  surety  company  that  in  case  the  contract  was 
awarded  to  the  plaintiff  such  surety  company  would  become  bound  as 
such  surety  and  guarantor  for  the  faithful  performance  of  the  contract 
and  execute  a  bond  therefor  as  required  by  the  statute.  The  plaintiff 
was  a  responsible  bidder.  After  the  opening  of  the  bids  the  com- 
mon council  referred  all  the  bids  to  the  street  and  sidewalk  committee 
and  the  city  engineer  to  tabulate  and  report  at  an  adjourned  meeting 
and  the  meeting  then  adjourned  to  a  day  specified. 

On  the  adjourned  day  the  committee  to  which  the  bids  were  referred 
reported,  by  which  report  it  appeared  that  the  aggregate  amount  of  the 


378  MOLLOY   V.   NEW   KOCHELLE. 

plaintiff's  bid  was  $61,626.30,  and  that  he  was  the  lowest  bidder. 
Without  discussion  or  further  consideration  a  resolution  was  then  of- 
fered and  passed  as  follows :  '■'■Resolved,  that  the  bid  of  F.  "VY.  Molloy 
(plaintiff)  be  rejected."  Thereupon  a  further  resolution  was  adopted 
as  follows  :"  On  motion  .  .  .  the  contract  for  the  improvement  of 
North  Avenue,  Horton  Avenue  and  Brook  street  is  awarded  to  Eusignor 
Brothers  at  the  sum  of  $64,204.40."  The  plaintiff  thereupon  filed  a 
protest  against  the  action  of  the  common  council  and  subsequently 
brought  this  action. 

At  the  Trial  Term  the  plaintiff  in  addition  to  showing  the  facts  as 
stated  offered  evidence  to  show  that  his  profits  on  the  contract  would 
have  been  $16,889.40  and  rested.  The  court  thereupon  dismissed  the 
complaint  and  ordered  that  the  exceptions  taken  during  the  trial  be 
heard  in  the  first  instance  at  the  Appellate  Division,  and  that  entry  of 
judgment  upon  the  verdict  aforesaid  be  suspended  in  the  meantime 
until  the  hearing  and  decision  by  said  Appellate  Division  of  said  excep- 
tions. The  Appellate  Division  overruled  the  exceptions  and  judgment 
was  entered  dismissing  the  complaint.^ 


Chase,  J.  Provisions  similar  to  the  one  in  the  defendant's  charter 
from  which  we  have  quoted  are  common  in  municipal  charters  every- 
where. Such  provisions  are  intended  to  prevent  favoritism.  They 
result  from  an  effort  to  prevent  official  action  being  influenced  by  im- 
proper motives.  The  same  effort  to  prevent  improper  official  action 
finds  expression  in  the  Village  Law  (section  332),  the  General  City 
Law  (section  3)  and  in  many  municipal  charters,  where  it  is  provided 
that  an  officer  therein  shall  not  be  directly  or  indirectly  interested  in  a 
contract  which  he,  or  a  board  of  which  he  is  a  member,  is  authorized 
to  make  on  behalf  of  the  municipality. 

Municipal  officers  acting  in  behalf  of  the  municipality  should  not 
have  a  personal  interest  in  determining  who  shall  be  awarded  a  con- 
tract or  be  affected  in  any  way  in  their  official  action  towards  a  favorite 
among  the  bidders.  Such  contracts  should  be  made  with  the  lowest  re- 
sponsible bidder  therefor,  because  there  is  less  opportunity  in  contracts 
so  let  for  improper  special  agreements  to  the  disadvantage  of  the  corpo- 
ration, and  such  contracts  are  in  consequence  thereof,  and  because  of 
the  competition,  more  economical  for  the  municipality.  The  meaning 
and  purpose  of  provisions  in  municipal  charters  requiring  that  contracts 
shall^^'e  n^acle_with_the  lowest  responsible  bidders  therefor  have  been 
repeatedly  defined^nd  stated  by  the  courts.  ^  * 

In  Brady  y.  Mayor,  etc.,  of  N.  F.,  20  N.  Y.  312,  the  court,  referring 
to  a  similar  provision  in  the  charter  of  the  city  of  New  York,  say :  ''  It 
was  based  upon  motives  of  public  economy,  and  originated,  perhaps, 

1   Arguments  and  part  of  opinion  omitted.—  Ed. 


MOLLOY   V.   NEW   KOCHELLE.  379 

m  some  degree  of  distrust  of  the  officers  to  whom  the  duty  of  making 
contracts  for  the  public  service  was  committed.  If  executed  according 
to  its  intention,  it  will  preclude  favoritism  and  jobbing,  and  such  was 
its  obvious  purpose.  It  does  not  require  any  argument  to  show  that  a 
contract  made  in  violation  of  its  requirements  is  null  and  void." 
(p.  316.) 

In  People  ex  rel.  Coughlin  v.  Gleason,  121  N.  Y.  631,  the  court, 
referring  to  a  similar  provision  in  the  charter  of  Long  Island  City,  say  : 
' '  This  provision  was  inserted  in  the  charter  undoubtedly  to  prevent 
favoritism,  corruption,  extravagance  and  improvidence  in  the  procure- 
ment of  work  and  supplies  for  the  city,  and  should  be  so  administered 
and  construed  as  fairly  and  reasonably  to  accomplish  this  purpose." 
(p.  634.) 

Such  a  statutory  provision  enacted  as  a  protection  to  the  corporation 
cannot  be  used  to  make  a  disobedience  of  its  provisions  by  the  muni- 1 
cipal  officers  a  double  source  of  punishment  to  the  municipality.  If  the 
plaintiff  is  right  in  his  contention  then  a  disobedience  of  the  provisions 
of  the  statute  will  make  the  municipality  pay  the  difference  between 
the  lowest  bid  and  the  bid  for  which  the  contract  is  made  and  also  the 
profit  that  the  lowest  responsible  bidder  would  have  made  if  the  statute 
had  not  been  violated.  But  such  is  not  the  purpose  of  the  charter 
provision. 


Although  the  plaintiff  asserts  rights  under  the  statute,  he  also  claims 
to  be  entitled  to  recover   on   contract.     No  contractual  relation  can 

'  ■ —  '  ^ 

arise  merely  from  a  bid  unless  by  the  terms  of  the  statute  and  the  ad- 
vertisement a  bid  in  pursuance  thereof^s^^  as  a  matterjof^law,  an 
acceptance  of  an  offer  wholly  apart  from  any  action  on  the  part  of  the 
municipalitj^r  any  of  its  officers.  Such  plahary^Ts~not  tFe  plaintiff 's~ 
case.  The  statute  and  the  advertisement  in  this  case  call  for  proposals. 
The  common  council  reserved  the  right  to  reject  any  and  all  bids. 
Under  a  statute  requiring  that  all  contracts  shall  be  awarded  to  the 
lowest  bidder,  the  body  awarding  the  contract  acting  in  good  faith  may 
refuse  to  so  award  the  contract  if  they  deem  it  for  the  best  interest  of 
the  city  to  do  so,  and  may  reject  all  of  the  bids  and  readvertise. 
Walsh  y.  Mayor,  etc.,  of  New  York,  113  N.  Y.  142. 

This  court  in  Erving  v.  Mayor,  etc.,  of  Neio  York,  131  N.  Y.  133, 
say  :  "  The  awarding  of  the  contract  on  the  part  of  the  officer  to  one  of\ 
several  bidders  requires  the  exercise  on  his  part  of  judgment  and  dis-  j 
cretion  and  the  award  itself  should  be  manifested  by  some  formal 
official  act  on  his  part,  and  ordinarily  reduced  to  writing  and  made  a 
part  of  the  records  in  his  department.  In  no  other  way  can  the  rights 
of  the  parties  be  preserved,  at  least  prior  to  the  actual  execution  of  the 
contract.  The  mere  arithmetical  operation  of  ascertaining  which  bid  is 
the  lowest  does  not  constitute  an  award.     The  duty  of  the  commis- 


380  MOLLOY   v.   NEW    ROCHELLE. 

sioner  to  examine  the  proposals  and  award  the  contract  is  judicial  in  its 
nature  and  character,  and  the  award  is  the  result  of  a  judicial  act." 
(p.  138.) 

Theplaintiff's  bid  in  this  cage_was_never  accepted.  It  was  express- 
ly  rejected  by  the  common  council.  The  plaintiff,  therefore,  does  not 
sustain  a  contractual  relation  with  the  defendant  and  cannot  sustain 
this  action  as  upon  contract.  The  authorities  mentioned  by  the  plain- 
tUTare  all  distinguishable  from  this  case.  They  are  each  based  upon 
an  accepted  bid. 

Council  for  the  appellant  in  his  oral  argument  requested  that  we 
should  discuss  in  this  opinion  the  question  of  the  power  of  the  courts 
in  any  case  to  direct  by  mandamus  the  officer  or  board  charged  with 
the  duty  of  entering  into  municipal  contracts  as  to  which  of  several 
bidders  therefor  should  be  awarded  the  contract.  That  question  is 
not  presented  on  this  appeal  for  our  determination.  It  should  be  left 
for  discussion  and  determination  in  a  case  where  the  question  is  directly 
and  necessarily  involved,  unaffected  by  this  decision  except  so  far  as  it 
is  controlled  by  what  we  have  actually  and  necessarily  decided  herein. 

The  plaintiff  cannot  sustain  this  action  and  the  judgment  should  be 
affirmed,  with  costs. 

Vann,  J.     I  concur  in  the  result  upon  two  grounds : 

1.  The  plaintiff  had  no  right  to  recover  damages  from  the  defend- 
ant for  breach  of  contract,  because  there  was  no  contract,  as  is  clearly 
shown  by  Judge  Chase  in  his  opinion. 

2.  The  remedy  of  the  plaintiff  was  by  matidcwms  to  compel  the  ex- 

ecution  of  a  contract   in    accordance   with   the  statute^ He  was  the 

lowest  responsible  bidder :  he  tendered  adequate  security  and  tl^ 
•statTite  commanded  the  common  council,  unless  they  rejected  all  bids, 
tojiward  the  contract  tojbiiiji.     People  ex  rel.  Couglilin\.  Gleason^  121 

n7y.  gsY. 

The  rejection  of  his  bid  andjtliie  accejDtance_of_one.^igh^ 

thousand  dollars  was^bitrary  and_illegal. It  was  presumptively  cor- 

rupt,  for  favoritism  is  one  form  of  corruption.  For  such  a  violation  of 
law  by  those  who  represent  the  city  there  should  be  a  remedy  against 
the  city  and,  as  it  cannot  be  by  way  of  damages  for  breach  of  contract 
it  should  be  by  mandamus.  Otherwise  competition  may  be  stifled 
through  the  want  of  inducement  to  bid  for  public  work. 

The  opinion  in  People  ex  rel.  Lunney  v.  Camphell,  1'2  N.  Y.  496,  in 
BO  far  as  it  declares  that  there  is  no  remedy  by  mandamus  in  such 
cases,  was  obiter  and  should  be  disregarded.  At  least,  if  the.  court  is 
of  the  opinion  that  mandam^ts  will  not  lie,  a  suggestion  shoilld  be  made 
to  the  legislature,  for  the  public  as  well  as  the  lowest  bidder  need  pro- 
tecti.fliL-  In  many  cases  the  public  can  be  adequately  protected  only 
through  the  lowest  bidder.  According  to  the  law,  as  apparently  left  by 
the  decision  about  to  be  made,  the  city  is  helpless  because  it  is  in  the 
hands  of  the  wrongdoers,    and  if  the  lowest  bidder  has  no  remedy, 


CITY   OF   VALPARAISO   V.    GARDNER.  381 

there  is  no  one  impelled  by  duty  or  self-interest  to  prevent  the  vio- 
lation of  an  important  provision,  common  to  nearly  all  municipal  char- 
ters, designed  to  protect  the  public,  but  now  practically  useless. 

CuLLEN,  Ch.  J.,  Haight,  Wernek,  Willard  Bartlett  and  Hiscock 
JJ.,  concur  with  Chase.  J.  ;  Vakn,  J.,  concurs  in  result  in  opinion. 

Judyment  affirmed. 


V- 


1^. 


CTTY   OF   VALPARAISO  v.    GARDNER. 

1884.     97  Indiana,  l.i 

From  the  Porter  Circuit  Court. 

E.  D.  Crum2:)acke)\  H.  A.  Gillette  and  A.  D.  Bartholomeiv^  foil 
appellants. 

W.  Johnston,  for  appellee. 

Elliott,  C.  J.  The  complaint  of  the  appellee  avers  that  he  is  a 
resident  taxpayer  of  the  city  of  Valparaiso;  that  the  municipal 
ofiicers  are  about  to  let  a  contract  to  a  water-works  company  for  sup- 
plying the  city  with  water  for  a  period  of  twenty  years,  at  an  annual 
expense  to  the  municipality  of  $6,000;  that  the  corporate  indebted- 
ness exceeds  five  per  centum  of  the  assessed  value  of  the  taxable 
property  of  the  city  and  that  there  is  no  money  in  the  treasury.  The 
prayer  of  the  complaint  is  for  an  injunction  restraining  the  corporate 
authorities  from  entering  into  the  contract. 

The  appellants  answered,  admitting  that  the  appellee  was  a  tax- 
payer; that  the  city  was  indebted  in  excess  of  two  per  centum  of  the 
aggregate  value  of  the  taxable  property,  and  averring  that  the  city 
has  a  population  of  over  five  thousand  persons  and  is  rapidly  increas- 
ing in  population ;  that  it  has  no  facilities  for  extinguishing  fires 
except  three  cisterns,  which  are  wholly  inadequate,  and  that  the 
safety  of  the  city  demands  that  the  contract  mentioned  in  the  com- 
plaint be  entered  into  and  a  supply  of  water  secured;  that  the  assessed 
value  of  taxable  property',  as  shown  by  the  assessment  roll,  amounted 
to  $1,350,000;  that  from  other  sources  than  taxation  the  revenue  of 
the  city  is  §2,500  per  annum;  that  the  ordinary  current  expenditurea 
are  less  than  $6,000  per  annum,  and  that  the  annual  revenues  of  the 
city  are  sufficient  to  pay  all  the  ordinary  expenditures  of  the  city  and 
the  water  rent  of  $6,000  per  annum,  besides  providing  for  the  accu- 
mulation of  a  sinking  fund,  as  the  law  requires ;  that  the  intention  was 
that  the  terms  of  the  proposed  contract  should  be  so  adjusted  that 
when  the  water-works  were  completed  and  an  instalment  of  rent 
earned,  there  would  be  money  sufficient  in  the  treasury  to  pay  it, 
derived  from  current  revenues,  and  to  so  fix  the  time  of  the  payment 

1  Portions  of  opinion  omitted  —  Ed. 


382  CITY   OF   VALPARAISO   V.    GARDNER. 

of  future  instalments  that  they  should  be  within  the  current  revenues 
of  the  cit}',  and  yet  leave  money  sufficient  to  meet  all  other  corporate 
expenses. 

In  1881  an  amendment  to  the  Constitution  was  adopted,  in  which 
Shis  provision  is  incorporated:  "  No  political  or  municipal  corpora- 
tion in  this  State  shall  ever  become  indebted,  in  any  manner  or  foi 
any  purpose,  to  an  amount,    in  the  aggregate,    exceeding   two  pei 
centum  on  the  value  of  the  taxable  property  within  such  corporation, 
to  be  ascertained  by  the  last  assessment  for  State  and  county  taxes 
previous  to  the  incurring  of  such   indebtedness;  and  all   bonds  or 
obligations,  in  excess  of  such  amount,  given  by  such  corporation, 
shall  be  void."     This  provision  received  consideration  in  Sackett  v. 
City  of  New  Albanij,  88  Ind.  473,  but  the  question  there  presented 
and  decided  was  very  different  from  that  which  here  faces  us.     The 
point  decided  in  that  case  was  that  a  city  could  not  issue  bonds  for 
current  expenses  where  there  were  no  funds  in  the  treasury  and  the 
existing  indebtedness  exceeded  two  per  centum  of  the  value  of  the 
taxable  property  of  the  municipality.     There  the  question  was  not 
whether  the  claim  which  the  municipal  officers  were  about  to  pay  in 
bonds  was  or  was  not  a  debt  within  the  meaning  of  the  Constitution; 
while  here  that  is  the  question,  so  that  we  come  to  the  decision  of 
this  case  unfettered  by  any  former  adjudication  of  this  court. 

The  question  is  a  grave  one,   and  not  entirely  without  difficulty. 
If  we  hold  that  the  contract  to  pay  an  annual  water  rent  of  $6,000 
.  during  a  period  of  twenty  years  creates  a  debt  for  the  aggregate  sum 
of  8120,000,  and  is  a  debt  within  the  prohibition  embodied  in  the 
Constitution,  we  should  lay  down  a  principle  that  would,  in  a  great 
majority  of  instances,  put  an  end  to  municipal  government.     If  it 
be  true  that  an  agreement  to  pay  a  given  sum  each  year  for  a  long 
period  of  years  constitutes  a  debt  for  the  aggregate  sum  resulting 
from  adding  together  all  the  yearly  instalments,  then  it  is  extremely 
doubtful  whether  there  is  a  city  in  the  State  that  has  authority  to 
repair  a  street,  dig  a  cistern  or  build  a  sidewalk,  for  nearly  every 
city  has  contracts  for  gas  and  water  supplies  running  for  a  long  series 
of  years,  in  which  the  aggregate  amount  of  annual  rents  would  of 
themselves  equal,  if  not  exceed,  the  limit  of  two  per  centum  on  the 
value  of  taxable  property.     "We  know,  as  matter  of  general  knowl- 
edge, that  water-works  and  gas-works  I'equire  the  outla}^  of  enormous 
sums  of  money,  and  that  such  enterprises  are  not  undertaken  under 
contracts  running  for  short  periods  of  time.     If  the  aggregate  sum 
of  all  the  yearly  rents  i*^  to  be  taken  as  a  debt  within  the  meaning  of 
the  Constitution,  then  many  cities  will  be  left  without  the  means  of 
procuring  things  so  essential  to  public  welfare  and  safety.  We  are 
not  to  presume,  unless  coerced  by  the  rigor  of  the  words  used,  that 
the  framers  of  the  amendment,   or  the  electors  who  voted  for  it, 
intended  to  destroy  the  corporate  existence  of  our  municipalities  or 


CITY    OF   VALPARAISO    V    GARDNER.  383 

to  leave  them  without  water  or  light.  Nor  are  we  to  presume  that 
the  electors  were  ignorant  of  the  existence,  condition  and  necessities 
of  our  great  towns  and  cities.  On  the  contrary,  we  are  to  presume 
that  these  things  were  known  to  the  electors,  and  that  they  intended 
to  foster  the  best  interests  of  these  instrumentalities  of  local  govern- 
ment. An  error  frequently  finds  its  way  into  trains  of  reasoning 
li'om  the  assumption,  often  made,  that  the  officers  are  the  corpora- 
tion. This  assumption  is  radically  erroneous,  for  it  is  the  inhabi- 
tants, and  not  the  officers,  who  constitute  the  public  corporations  of 
the  land.  Grant  Corp.  357;  Loivber  v.  Jfa>/o)\  etc.,  5  Abbott  Pr. 
325.  Clarke  v.  Clt/y  of  Rochester,  24  Barb.  446.  To  deny  the  right 
to  procure  water  and  light  is  to  deny  it  to  the  inhabitants  of  the 
towns  and  cities,  and  these  form  no  inconsiderable  part  of  the  pop- 
ulation of  the  State.  We  cannot,  therefore,  by  mere  intendment 
declare  that  the  electors  of  the  State  meant  to  lay  down  a  rule  that 
should  practically  take  from  the  inhabitants  of  our  cities  the  power 
to  supply  themselves  with  water  or  light.  To  reach  the  couckisiun 
that  they  meant  to  do  this,  we  must  find  clear  warrant  in  the  language 
of  the  constitutional  provision  itself.  We  agree  that  if  it  be  found 
that  the  language  used  is  clear  and  explicit,  we  must  give  it  effect, 
no  matter  how  disastrous  the  consequences  may  be.  While^  it  is  oui* 
duty  to  yield  to  the  words  of  the  Constitution,  still,  in  determining 
wtrat^nrercntiTgTEey  were  intended  to  have,  it  is  proper  to  consider 
the  cTfcutnstances  under  which  the  provision  was  adopted  and  the 
object  it  was  intended  to  accomDlish.  Cooley  Const.  Lim.  (5th  ed.) 
78,  79. 

In  view  of  the  warring  among  the  adjudged  cases  it  is  not  easy  to 
affirm  that  the  word  "debt  "  has  a  firmly  settled  meaning.  In  one 
case  it  was  said,  "But  the  compensation  to  this  contractor  was  not  a 
debt  within  the  sense  of  this  provision,  until  the  service  was  per 
formed  and  the  contractor  was  entitled  to  be  paid.  It  was,  no  doubt, 
an  obligation,  in  some  sense,  from  the  time  the  contract  was  entered 
into,  but  it  was  not  a  debt  in  the  popular  sense  "  of  the  term.  Weston 
V.  City  of  Syracuse,  17  N.  Y.  110.  A  similar  definition  is  annexed 
to  the  word  in  the  opinion  of  the  court,  written  by  the  eminent 
jurist,  Judge  Dexio,  in  Garrison  v.  Hoive,  17  N.  Y.  458.  It  was 
said  in  Wentworth  v.  Whittemore,  1  Mass.  471,  "  but  whenever  it  is 
uncertain  whether  anything  will  ever  be  demandable  hy  virtue  of  the 
contract  it  cannot  be  called  a  debt."  By  the  Supreme  Court  of 
California  it  was  said:  "A  sum  payable  upon  a  contingency,  how- 
ever, is  not  a  debt,  or  does  not  become  a  debt  until  the  contingency 
has  happened."  People  v.  Arguello,  37  Cal.  524.  In  Sackett  v. 
City  of  New  Albany,  supra,  this  language  was  used:  "  By  *  indebted- 
ness,' in  this  connection,  we  mean  an  agreement  of  some  kind  by  the 
city  to  pay  money  where  no  suitable  provision  has  been  made  for 
the  prompt  discharge  of  the  obligation  imposed  by  the  agreement." 
Conceding  that  there  are  cases  giving  the  word  "  debt"  a  somewhat 


384  CITY   OF   VALPARAISO   V.    GAEDNER. 

different  meaning  from  that  affixed  to  it  by  these  authorities,  still 
they  are  sufficient  to  prove,  at  least,  that  the  word  cannot  be  said  to 
have  a  firmly  settled  meaning.  It  is  not  necessary  for  us  to  decide 
that  the  meaning  given  the  word  in  the  cases  cited  is  that  which  the 
word  invariably  possesses,  for  it  is  sufficient  for  our  purpose  to 
assume  that  its  meaning  is  not  so  fixed  and  definite  as  to  forbid  con- 
struction. The  word  used  in  the  constitution  is  "indebted,"  bi ! 
without  ascertaining  what  the  word  "debt"  means  we  cannot  afiii 
a  meaning  to  that  word,  for  its  popular  meaning  is  "  placed  in  debt," 
or  as  Worcester  puts  it,  "  being  in  debt."  It  is  obvious  that  a  cor- 
poration owing  no  debt  cannot  be  indebted. 

Our  leading  purpose  is,  therefore,  to  ascertain  what  meaning  the 
authors  of  the  Constitution  intended  the  word  "  indebted"  to  have, 
and  we  address  ourselves  to  its  accomplishment.  It  is  clear  that  if 
the  city  should  fail  to  perform  its  contract,  the  recovery  would  be  for 
damages  for  a  breach  of  contract,  and  not  the  contract  rate  of  com- 
pensation, and,  therefore,  it  cannot  be  true  that  the  whole  of  the 
compensation  is  certainly  demandable  by  the  corporation  with  which 
it  contracts.  It  may  be  that  but  a  small  part  of  even  one  year's 
compensation  can  be  recovered.  On  the  other  hand,  the  failure  of 
the  water  company  to  perform  may  put  an  end  to  the  contract,  and 
that  would,  of  course,  terminate  all  liability  of  the  municipal  corpo- 
ration. There  could  be  no  action  maintained  against  the  city  for  the 
recovery  of  compensation  under  the  contract  without  evidence  that 
the  water  had  been  furnished,  and  this  proves  that  there  is  no 
indebtedness  until  the  water  has  been  supplied  in  accordance  with 
the  terms  of  the  contract. 

The  effect  of  the  proposed  contract  is  that  the  city  shall  be  liable 
for  water  as  it  is  furnished  and  not  before.  It  is  not  until  after  the 
water  has  been  furnished  that  there  can  be  justly  said  to  be  a  debt, 
for,  while  there  might  be  a  liability  for  damages,  in  case  of  a  breach 
on  the  part  of  the  city,  there  is  certainly  none  under  the  contract  until 
the  city  has  received  that  for  which  it  contracted.  If  it  can  pay  this 
indebtedness  when  it  comes  into  existence,  without  exceeding  the 
constitutional  limitation,  then  there  is  no  violation  of  the  letter,  and 
surely  none  of  the  spirit  of  the  Constitution.  We  are  ciireful  to  say 
when  the  debt  comes  into  existence,  and  not  to  say  when  it  becomes 
due,  for  between  these  things  there  is  an  essential  difference.  The 
object  to  be  accomplished  by  the  amendment,  the  condition  and 
necessities  of  our  municipalities,  as  known  to  tlie  authors  of  t-he 
amendment,  and  the  just  force  of  the  language  employed,  authorize 
us  to  conclude  that  the  inhibition  of  the  Constitution  does  not  apply 
to  contracts  for  water  to  be  paid  for  as  the  water  is  furnished,  pro- 
vided it  is  shown  that  the  contract  price  can  be  paid  from  the  current 
revenues  as  the  water  is  furnished  and  without  increasing  the  corpo- 
tate  indebtedness  beyond  the  constitutional  limit. 


CITY   OF   VALPARAISO    V.   GARDNER.  385 

The  question  was  very  fully  discussed  in  Grant  v.  City  of  Daven- 
port, 36  Iowa,  396,  where  it  was  held  that  a  contract  entered  into  by 
the  city  for  the  supply  of  water  for  a  term  of  years,  at  an  annual 
rental,  is  one  relating  to  the  ordinary  expenses  of  the  city,  and  that 
the  annual  rental  is  not  an  indebtedness  within  the  meaning  of  the 
Constitution.  One  of  the  illustrations  used  in  the  course  of  the 
opinion  is  so  apt  that  we  quote  it:  "  Suppose  a  man  having  a  family 
to  support  is  without  other  means  to  do  it,  except  his  salary,  which 
is  adequate  for  that  purpose.  He  is  compelled  to  rent  a  house  to 
live  in,  and  by  a  contract  for  a  term  of  years  he  can  reduce  its  cost, 
and  he  therefore  makes  a  lease  for  ten  years  at  $300  per  year,  or 
$3,000  for  the  term,  the  rent  being  payable  monthly,  quarterly  or 
annually.     Has  that  man  created  an  indebtedness  of  $3,000?  " 

We  have  assumed  that  the  supply  of  water  is  necessary  to  the  wel- 
fare of  the  inhabitants  of  the  municipality,  and  that  it  constitutes 
one  of  the  items  of  current  expenditure  essential  to  the  welfare  of 
the  corporation,  and  this  assumption  rests  upon  the  facts  pleaded  in 
the  answer.  This  distinguishes  the  case,  as  is  well  shown  in  Grant 
V.  Clti/  of  Davenport,  supra,  from  the  cases  in  which  property  is  pur- 
chased or  subscriptions  made  to  the  capital  stock  of  railroad  or  other 
corporations.  It  is  the  items  of  expense  essential  to  the  maintenance 
of  corporate  existence,  such  as  light,  water,  labor  and  the  like,  that 
constitute  current  expenses  payable  out  of  current  revenues.  The 
authorities  agree  that  current  revenues  may  be  applied  to  such  pur- 
poses even  though  the  effect  be  to  postpone  judgment  creditors.  Coy 
V.  City  Council,  17  Iowa,  1;  Coffin  v.  City  Cou?icil,  26  Iowa,  515; 
Gra7it  V.  City  of  Davenport,  supra.  When  the  current  revenues  are 
sufficient  to  fully  pay  the  current  expenses  necessarily  incurred  to 
maintain  corporate  life,  there  cannot  be  said  to  be  any  debt.  We 
do  not  assert  that  a  debt  may  be  created  even  for  current  expenses, 
if  its  effect  will  be  to  extend  the  corporate  indebtedness  beyond  the 
constitutional  limit,  but  we  do  assert  that  where  the  current  revenues 
are  sufficient  to  defray  all  current  expenses  without  increasing  the 
indebtedness,  there  is  then  no  corporate  debt  incurred  for  such 
expenses.  To  illustrate  our  meaning,  suppose  a  laborer  is  employed 
on  the  first  day  of  April  to  render  services  on  the  first  day  of  May, 
that  on  the  day  of  the  employment  there  is  no  money  in  the  treasury, 
but  on  the  first  day  of  May,  when  the  services  are  rendered,  there  will 
be  more  than  enough  yielded  by  the  current  revenues,  there  is  in  such 
a  case  really  no  debt.  Again,  suppose  that  on  the  first  day  of  April 
gas  is  needed  for  that  month,  and  that  on  each  day  of  that  month  thfe 
current  revenues  are  sufficient  to  pay  each  day's  gas  bill,  there  will 
be  no  debt  even  though  there  was  not  sufficient  money  to  pay  the 
month's  account  in  the  treasury  on  the  day  the  contract  was  made- 
Such  contracts  do  not  create  a  debt  prior  to  the  rendition  of  the  ser- 
vices in  the  one  case,  or  to  the  furnishing  of  gas  in  the  other;  they 


386  CITY   OF   VALPARAISO   V.    GARDNER. 

Simply  devote  to  current  expenses  current  revenues.  While,  as 
decided  in  Sackttt  v.  City  of  New  Albany^  siq)ra^  the  debt  cannot 
be  made  to  exceed  the  constitutional  limit  even  for  current  expenses, 
no  matter  bow  urgent,  yet  current  revenues  as  they  come  in  may  be 
used  to  defray  such  expenses,  and  if  they  are  sufficient  for  that  pur- 
pose, then  no  debt  is  created. 

If  a  bond,  note,  or  other  obligation  is  executed,  then,  doubtless, 
a  debt  is  created,  for  such  things  constitute  evidences  of  indebted- 
ness, but  that  is  not  the  case  here.  So,  if  the  consideration  of  the 
contract  is  received  at  once,  instead  of  being  yielded  in  the  future  or 
at  intervals,  then  it  might  be  said  that  there  was  a  debt,  but  where 
there  is  nothing  owing  until  after  the  thing  contracted  for  is  done  or 
furnished,  and  that  thing  is  a  part  of  the  necessary  yearly  expenses 
of  the  municipality,  there  will  be  no  debt,  if,  when  the  thing  is  done 
or  furnished  there  will  be  money  in  the  treasury,  yielded  by  current 
revenues,  sufficient  to  fully  pay  the  claim  without  encroaching  upon 
other  funds.  This  we  understand  to  be  the  case  made  by  the  answer, 
and  we  think  it  a  case  not  within  the  inhibition  contained  in  the 
constitutional  amendment. 

If  a  different  view  be  taken  from  that  which  we  maintain,  startling 
results  would  follow  in  the  application  of  the  principle  to  other  cases. 
Take,  for  instance,  a  merchant  having  a  large  number  of  clerks 
employed  for  a  year  each,  and  at  a  fixed  salary,  could  such  a  mer- 
chant in  making  out  his  tax-list  deduct  the  aggregate  amount  of  all 
the  salaries  computed  to  the  end  of  the  year,  on  the  ground  that  it 
constituted  an  indebtedness?  Take,  again,  the  same  supposed  case, 
and  would  any  one  say  that  the  merchant's  solvency  was  to  be  deter- 
mined by  taking  into  consideration  the  aggregate  of  the  salaries  that 
would  be  due  his  clerks  at  the  end  of  the  year?  Take,  for  another 
example,  the  case  of  a  private  corporation  actively  engaged  in  busi- 
ness, could  it  be  pushed  to  the  wall  on  the  ground  that  it  was  insol- 
vent, by  evidence  that  it  had  contracted  with  a  large  number  of 
men  for  a  year's  service,  and  that  the  aggregate  sum  due  at  the  end 
of  the  year  would  be  much  greater  than  the  value  of  its  property  at 
the  opening  of  the  year?  Take  still  another  example,  a  municipal 
corporation  —  and  here  there  need  be  no  supposition  —  with  its  officers 
(some  of  them  with  terms  of  several  years),  its  policemen  and  its 
firemen,  is  it  indebted  at  the  beginning  of  the  year,  for  the  grand 
aggregate  of  all  the  salaries  to  the  end  of  all  the  terms?  In  the  case 
of  the  merchant  and  of  the  private  corporation,  it  certainly  would  be 
held,  without  hesitation  or  doubt,  that  if  the  current  income  or  profit 
would  discharge  the  obligations  there  would  be  no  indebtedness;  and 
this  must  be  true  of  municipal  corporations  in  cases  where  there  will 
be  money  in  the  treasury,  derived  from  current  revenues,  sufficient  to 
pay  for  services  rendered  or  things  furnished,  as  part  of  the  current 
corporate  expenses,  when  the  services  are  rendered  or  the  things 
actually  furnished.     Expenses  of  such  a  character  should  be  deemed 


SPILMAN   V.   CITY   OF   PARKERSBURG.  387 

incidental  expenses  of  the  corporate  business,  and  not  debts,  and  as 
long,  at  least,  as  the  current  revenues  will  pay  these  expenses  with- 
out taking  from  funds  devoted  to  other  purposes  by  command  of  the 
corporate  charter  what  properly  belongs  to  them,  there  is  no  indebted- 
ness within  the  meaning  of  the  Constitution. 

Judgment  reversed^  xvlth  instructions  to  overrule  the  demurrer  to  the 
answer^  and  to  proceed  in  accordance  with  this  opinion. 


SPILMAN   V.    CITY  OF  PARKERSBURG. 

1891.     35  West  Virginia,  605.1 

J.  B.  Jackson  and  J.  A.  Hutchinson^  for  appellants.  [Citations  of 
counsel  omitted.] 

jB.  jSL.  Ambler^  for  appellee. 

Holt,  J.  Article  10,  section  8,  of  the  Constitution  of  West  Vir- 
ginia, provides  that  "  no  county,  city,  school  district  or  municipal 
corporation  shall  hereafter  be  allowed  to  become  indebted  in  any 
manner  or  for  any  purpose  to  an  amount,  including  existing  indebted- 
ness, in  the  aggregate  exceeding  five  per  centum  on  the  value  of  the 
taxable  property  therein,  to  be  ascertained  by  the  last  assessment  for 
state  and  county  taxes  previous  to  the  incurring  of  such  indebted- 
ness ;  nor  without  at  the  same  time  providing  for  the  collection  of  a 
direct  annual  tax,  sufficient  to  pay  annually  the  interest  on  such  debt 
and  the  principal  thereof  within,  and  not  exceeding,  thirty-four  years; 
provided,  that  no  such  debt  shall  be  contracted  under  this  section 
unless  all  questions  connected  with  the  same  shall  have  been  first 
submitted  to  a  vote  of  the  people,  and  have  received  three-fifths  of 
all  the  votes  cast  for  and  against  the  same."  This  suit  involves  this 
provision  of  the  state  constitution,  and  is  a  bill  in  equity,  filed  in 
the  circuit  court  of  Wood  county  on  the  9th  day  of  April,  1891,  by 
B.  D.  Spilman,  who  sues  on  behalf  of  himself  and  all  other  citizens, 
residents  and  tax-payers  in  and  of  the  city  of  Parkersburg,  W.  Va., 
against  the  city  of  Parkersburg  and  others,  to  restrain  and  inhibit 
the  creation  by  the  city  of  a  debt  for  the  erectioiLilf_aajeJjecJricJight 
plant,  alleged  to  be  in  violation  of  the  above-mentioned  section  of 
tEe^ate  constitution.  The  injunction  was  granted  on  May  25,  1891, 
until  further  order,  and  thereupon  defendants  gave  notice  of  motion 
to  be  made  on  June  22,  1891,  to  dissolve,  on  which  day  the  judge  in 
vacation  heard  the  motion,  but  overruled  the  same,  refusing  to  dis- 
solve the  injunction,  and  from  this  order  defendants  below,  plaintiffs 
in  error,  having  obtained  this  appeal. 

The  facts  are  as  follows :  The  total  valuation  of  the  taxable  prop- 
erty on  the   10th  day  of  November,  1890,   ascertained  by  the  last 

1  Portious  of  opiuiou  omitted.  —  Ed. 


388  SPILMAN   V.    CITY   OF   PARKERSBURG. 

assessment  in  the  city  for  state  and  county  taxes,  was  S3, 818, 120 
—  five  per  cent  of  wliicli  is  $190,906.  The  then  existing  indebted- 
ness of  the  city  was  $190,000.  On  the  18th  day  of  March,  1891,  the 
Thomson-Houston  Electric  Company  entered  into  i.  written  contract 
of  that  date,  whereby  the  electric  company  agreed  to  erect  and  instaU 
for  the  city  a  certain  electric  plant  in  accordance  with  specifications 
attached  and  made  part  of  the  contract,  for  which  the  city  agreed  to 
provide  a  suitable  site,  boiler  and  foundation  for  engine  and  dyna- 
mos, to  pay  all  taxes  on  such  apparatus  and  plant,  and  keep  the  same 
in  repair,  and  also  agreed  to  lease  from  the  electric,  company  such 
plant,  furnished  for  street  lighting,  for  a  term  of  five  years  from  the 
completion  of  the  plant,  and  to  pay  at  the  end  of  each  three  months 
after  its  completion  —  that  is  to  say,  quarterly  —  the  sum  of  $1,625 
for  the  use  thereof,  except  that  each  succeeding  payment  was  to  be 
$18.75  less  than  the  preceding  payment;  and  at  the  expiration  of  the 
term  of  five  years  the  city  has  the  right  to  buy  the  same  at  the  price 
of~$l  —  plainly  a  contract  of  purchase  in  legal  effect;  in  fact  so  desig- 
nated twice  in  a  paper  made  part  of  the  contract.  No  question  con- 
nected with  this  transaction  was  submitted  to  the  people;  no  vote 
was  had  thereon.  In  addition,  there  were  in  November,  1890,  funds 
receivable  from  licenses,  etc.,  the  sum  of  $17,444.53. 

Blackstone  (vol.  3,  p.  154)  saj's:  "The  legal  acceptation  of  debt 
is  a  sum  of  money  due  by  certain  and  express  agreement."  This  is 
given  in  connection  with  his  treatment  of  the  action  of  debt. 

In  the  constitution  it  means  any  debt  created  by  contract,  express 
or  implied;  any  voluntary  incurring  of  any  liability  to  pay  in  any 
manner  or  for  any  purpose,  when  the  given  limit  of  indebtedness  has 
been  reached.  It  may  be  a  debt  payable  in  the  future  as  well  as  one 
paj^able  presently;  one  payable  upon  some  contingency,  such  as  the 
delivery  of  property,  as  well  as  for  property  already  delivered. 
When  the  contingency  happens,  the  debt  becomes  fixed;  it  exists. 
It  only  differs  from  an  unqualified  promise  in  the  manner  in  which  it 
is  created.  And,  since  the  purpose  of  the  debt  is  expressly  excluded 
from  consideration,  it  can  make  no  difference  whether  the  debt  be  for 
necessary  current  expenses  or  for  something  else. " 

I  do  not  deem  it  necessary  to  review  seriatim  the  many  cases  on 
the  subject,  but  rather,  with  their  help,  make  a  careful  analysis  of 
our  own  constitutional  provision  on  the  point. 

1.  What  kind  of  indebtedness  is  prohibited?  "If  a  man  have 
any  more  or  less  of  meaning  in  the  term  he  makes  use  of  than 
another,  he  does  not  talk  with  him  to  the  same  point."  By  the  term 
"  indebtedness,"  as  here  used,  is  meant  the  state  of  being  by  volun- 
tary obligation,  express  or  implied,  under  legal  liability  to  pay  in 
the  present  or  at  some  future  time  for  something  already  received,  or 
for  something  yet  to  be  furnished  or  rendered.  This  includes  every 
Kind  of  indebtedness,  no  matter  in  what  manner  created,  or  volun« 


SPILMAN   V.    CITY   OF   PARKERSBDRG.  389 

tarily  brought  about;  or  for  what  purpose,  whether  it  be  for  munic- 
ipal self-preservation  or  not;  whether  for  pure  air,  pure  water,  good 
light,  clean  and  convenient  and  safe  streets  and  sidewalks;  whether 
it  be  payable  now  or  hereafter,  payable  quarterly  or  annually,  or  at 
any  date  running  on  for  thirty-four  years;  whether  for  current  ex- 
penses or  fixed  and  definite  debts  or  charges;  whether  for  personal 
property  or  real  property,  leasehold  or  freehold.  It  is  none  the  less 
indebtedness,  created  in  some  manner,  and  for  some  purpose,  and  is 
within  the  purview  and  the  bar  of  the  constitution.  The  confusion 
as  to  "  current  expenses  "  grows  out  of  the  failure  to  give  due  weight 
to  another  part  of  section  8,  article  10. 

2.  Provision  for  payment.  The  city  shall  "at  the  same  time 
provide  for  the  collection  of  a  direct  annual  tax  sufficient  to  pay 
annually  the  interest  on  such  debt,  and  the  principal  thereof  within 
and  not  exceeding  thirty-four  years."  If  it  is  an  item  of  current 
expenses  or  any  thing  else  for  the  payment  of  which  provision  has 
already  been  made  by  levy  laid,  then  it  needs  no  other  provision  fo 
its  payment,  and  is  not  within  the  letter  of  the  constitution;  neithe 
is  it  within  its  true  meaning,  for  a  draft  on  a  fund  already  in  hand, 
or  by  levy  already  made  and  provided,  meets  it  and  discharges  it,  sc 
that  no  indebtedness  arises.  Thus  it  happens  that  the  mere  coinci- 
dence of  current  expenses  being  generally  met  and  discharged  by 
a  fund  in  hand  or  already  levied  for  is  apt  to  mislead  us  into  the 
view  that  indebtedness  to  pay  current  annual  expenses  is  not  within 
the  prohibition;  whereas,  as  we  have  seen,  it  is  as  absolutely  pro- 
hibited as  indebtedness  created  in  any  other  manner  or  for  any 
other  purpose.  This  clause  of  the  section  is  for  the  benefit  of  the 
creditor. 

3.  "  Shall  not  hereafter  be  allowed  to  become  indebted  in  any  man- 
ner or  for  any  purpose  to  an  amount,  including  existing  indebted- 
ness, in  the  aggregate  exceeding  five  per  centum  on  the  value  of  the 
taxable  property  therein,  to  be  ascertained  by  the  last  assessment  for 
state  and  county  taxes  previous  to  the  incurring  of  such  indebted- 
ness." This  provision  is  intended,  by  fixing  a  maximum  limit  in 
any  and  all  events,  to  guard  the  people  of  the  town  from  their  own 
thoughtlessness  or  recklessness  as  to  the  burden  put  upon  others,  the 
large  tax-payers  being  generally  in  the  minority.  It  is  intended  to 
protect  posterity  by  its  limit  as  to  time,  and  the  tax-payers  by  its 
limit  as  to  quantity. 

4.  "  Not  exceeding  five  per  centum  on  the  value  of  the  taxable 
property  therein,  to  be  ascertained  by  the  last  assessment  for  state 
and  county  taxes  previous  to  the  incurring  of  such  indebtedness." 
This  gives  us  a  precise  and  definite  standard  by  which  to  measure 
and  ascertain  the  extent  to  which  the  indebtedness  may  go  and  we 
Bee  that  it  does  not  include  tithables,  nor  licenses,  nor  market  fees, 
Bor  wharfage,  nor  police  court  fines,  nor  bridge  tax,  etc. 

5.  "  Provided,  that  no  debt  shall  be  contracted  under  this  section, 


390  SPILMAN   V.   CITY   OF   PARKEESBURG. 

unless  all  questions  connected  with  the  same  shall  have  been  first  sub« 
initted  to  a  vote  of  the  people,  and  have  received  three-fifths  of  all 
the  votes  cast  for  and  against  the  same,"  plainly  intending  that  no 
such  indebtedness  should  be  created  in  a  corner,  and  without  the 
knowledge  and  sanction  of  the  tax-paying  voters.  It  should  be  pub- 
lic, and  run  the  gauntlet  of  full  and  free  discussion.  The  people 
must  be  in  earnest  about  this  matter,  or  they  would  not  by  their 
organic  law  have  barred  cut  this  debt-creating  power  with  a  triple 
hedge  of  safeguards.  Its  wisdom  is  unquestioned,  and  it  has  found 
or  is  rapidly  finding  its  way  into  all  state  constitutions.  It  is  plainly 
remedial;  therefore  the  courts  should  uphold  it  with  a  steady  hand, 
and  construe  and  apply  it  in  the  advancement  of  the  benefit  sought 
for,  and  in  suppression  of  the  evil  intended  to  be  suppressed,  and  not 
give  up  the  citadel  to  the  first  hard  case,  with  bad  law  in  its  train, 
that  demands  its  surrender.  When  we  apply  this  section,  thus  read 
and  construed,  to  the  facts  of  the  case  in  hand,  we  find  this  electric 
contract  unable  to  penetrate  even  the  outer  wall. 

1.  Wh,at_inatters  it  what  we  call  the  thing  contracted  for,  or  tba 
pontract  itself  —  lease,  purchase  or  executory  contract  to  lease  _or_ 
purchase  —  the  thing  thus  created  is  a  debt.     It  is  executory;  it  may 
never  be  carried  out.     None  the  less  it  is  a  present  binding  agree- 
ment for  the  creation  of  a  prospective  debt. 

2.  The  five  per  cent  limit  was  already  reached  —  it  may  lack  a 
trifle,  but  virtually  reached.-  The  maximum  measure  is  full.  There 
is  room  for  no  more  indebtedness.  We  are  not  permitted  to  piece  on 
to  the  last  aggregate  tax  value  the  $17,000  or  $20,000  derived  from 
city  licenses,  police  fines,  etc.,  in  order  to  broaden  the  five  per  cent 
fund  by  enlarging  the  basis  from  which  it  is  calculated,  so  as  to  make 
room  for  another  debt.  The  constitution  does  not  say  so,  but  by 
what  it  does  say  excludes  it.  Wh}^  not  take  this  fund,  and  buy  the 
electric  apparatus?  Then  there  would  be  no  debt.  Not  being  capable 
of  being  used  to  enlarge  the  basis  of  calculation  at  the  one  end, 
neither  can  it  be  used  to  belittle  the  debt  at  the  other,  to  make  it 
insignificant,  compared  with  the  means  of  payment.  To  say  that  it 
is  sufficient  to  pay  with  will  not  do.  It  must  be  applied ;  and  when 
that  is  done  the  dispute  is  ended. 

3.  The  people  have  had  no  say  in  the  matter,  they  have  not  voted, 
nor  had  an  opportunity  to  vote.  The  right  of  the  city  to  create 
indebtedness  is  exhausted.  The  indebtedness  amounts  to  $190,000; 
the  maximum  limit  is  $190,850.50  —  leaving  a  margin  of  $850.50. 

4.  On  behalf  of  the  city  authorities  it  is  urged  with  a  good  deal  of 
force  that  this  is  a  contract  for  light  —  one  of  the  public  necessities 
of  city  life ;  that  to  provide  it  is  one  of  the  urgent  items  of  current 
fcxpense;  that  a  modern  plant  cannot  be  obtained  by  yearly  contract: 
that  it  is  so  costly  that  no  one  will  take  the  risk  of  supplying  it  in  that 
way,  but  that  the  only  obtainable  terms  are  for  a  term  of  years,  say 
five  at  the  least,  with  quarterly  or  annual  payments;  and  that  as  the 


SPILMAX   V.   CITY   OF   PARKERSBURG,  391 

rent  or  installments  of  pnrchase-money  fall  dne  onl}'  as  the  compen- 
Baiion  has  been  earned,  the  funds  are  b}-  that  time  in  the  treasury  wild 
which  to  pay.  All  this  sounds  plausible  enough,  but  the  trouble  with 
it  is  no  levy  has  been  made  to  meet  it ;  no  provision  has  been  made  or 
can  be  made  for  a  direct  annual  tax  sufficient  to  pay  it,  because  the  in- 
debtedness already  existing  is  up  to  the  maximum  allowed  by  law  ;  and 
the  contract  does  not  restrict  its  source  of  pavment  to  current  funds_ 
derivable  from  sources  other  than  taxation,  such  as  licenses,  police 
fines,^  efc77"if  that  would  avoid  the  trouble  (as  to  which  we  express 
no  opinion).  That  ma}-  \)Q  one  of  the  sources  of  revenue  already 
set  apart  or  relied  on  to  pay  interest  and  principal  of  the  §190,000 
of  city  indebtedness  already-  existing.  The  city  is  rapidly  increasing 
in  taxable  wealth,  no  doubt,  but  the  constitution  requires  us  to  take 
as  the  basis  the  last  assessment,  and  that  is  before  us  among  the 
facts  of  the  case,  and  we  are  not  allowed  to  look  ahead  to  some 
conjectural  assessment  not  yet  made. 

I  have  examined  all  these  cases  of  "necessary  current  expenses," 
as  the}'  are  called,  to  which  our  attention  has  been  directed  ;  examined 
some  of  them  in  a  perfunctory  manner  it  is  true,  for  no  man  nowada\-s 
can  deliberatel}-  read  ever}*  thing.     [After  citing  a  large  number  of  au- 
thorities.]    I  need  not  stop  to  compare  and  distinguish;  that  has  been 
well  done  in  1  Dill,  Mun.  Corp.  (4th  Ed.),  §  133  et  seq.,  and  notes.    And 
I  have  been  led  to  the  conclusion  that  the  safe  and  sound  construc- 
tion is  laid  down  in  the  much-considered  case  (three  times  before  the 
court)  of  Prince  v.  City  of  Quincy,  128  111.  443  (1889);    21   N.  E. 
Rep.  768.     "  The  effect  of  this  constitutional  inhibition  is  to  require 
cities  indebted  to  the  limit  fixed  by  the  constitution  to  carry  on  their 
corporate'"  operations  wliile  so  indebted  upon    the   cash   s3-stem,   and. 
not  upon  credit  to  any  extent  or  for  an}'  purpose  ; "  that  is,  payment 
must  be  provided  for  by  levy  laid,  as  distinguished  from  levy  here- 
after intended  to  be  laid.     "  If  an  indebtedness  of  a  city  for  current 
expenses  and  supplying  water  is  forbidden  as  being  in  excess  of  the 
constitutional  limit,  the  contract  upon  which  it  arose,  though  in  itself 
executory,  and  creating  only  a  contingent  liability,  is  also  forbidden. 
Prohil)ition   of  the   end   is   prohibition   of  the   direct,   designed   and 
appropriate  means."     This  is  the  true  construction.     Any  other  would 
deprive   these   constitutional    limitations   of  the   force    and   efficiency 
indispensably  required  to  prevent  or  cure  the  evil  aimed  at.     To  this 
conclusion  the  learned  judge  of  the  circuit  court  who  entered  the  order 
complained  of  was  brought,  no  doubt,  after    a  careful  consideration 
of  all  the  authorities.     I  regard  his  conclusion  as  the  onlv  safe  and 
sound  one.     We  are  working  in  constitutional  harness  in  the  piping 
times  of  peace,  and  do  not  feel  called  on  to  heed  tiie  exacting  imperi- 
ousness  of  these  higher  laws  of  municipal  self-preservation  ;    but  are 
forced  to  say  what  he  has  in  effect  said :  "  The  city  fathers,  when  the 
constitutional  limit   of  voluntary  indebtedness,   as   in   this  case,   haf 
been  reached,  must  for  the  time  cast  about  in  search  of  the  philoso 


392  EAUCH  V.   CHAPMAN. 

pher's  stone,  '  pay  as  j'ou  go.' "  Therefore,  the  order  of  the  circuit 
court  of  Wood  count\-,  entered  by  the  judge  in  vacation  on  the 
22d  day  of  June,  1891,  overruling  defendants*  motion  to  dissolve  the 
injunction  awarded  on  the  25th  day  of  May,  1891,  is  affirmed. 


^v 


RAUCH   V.   CHAPMAN. 

1887.     I  &  Washington,  5&8A 

Appeal  from  superior  court,  Klickitat  count}'. 

W.  £.  Preshy  and  Huntington  &  Wilson,  for  appellant. 

C.  H.  Spalding,  for  respondent. 

Reavis,  J.  Suit  in  equity,  by  a  taxpayer  of  Klickitat  county, 
against  the  count}'  treasurer  to  enjoin  the  payment  of  certain  county 
warrants,  on  the  ground  that  they  were  issued  after  the  constitutional 
limitation  of  count}-  indebtedness  had  been  incurred.  The  complaint, 
after  other  necessary  allegations,  set  forth  that  the  indebtedness  of 
the  county  was  more  than  one  and  one-half  per  centum  of  the  taxable 
propert}'  therein,  and  no  validation  b}'  vote  of  the  electors  had  beea 
made  of  any  additional  indebtedness.  The  answer  stated,  among 
other  defenses  to  the  suit,  that  the  warrants  in  controversy  were 
compulsory  obligations  imposed  upon  the  count}'  by  the  constitution 
and  laws  of  the  state ;  and  specified  some  of  the  purposes  for  which 
the  warrants  were  issued,  among  which  were  services  for  jurors  in 
the  superior  court,  witness  fees  in  criminal  proceedings,  and  sheriff's 
expenses  in  serving  criminal  process,  and  expenses  incurred  at  the 
general  state  election.  Plaintiff  demurred  to  this  affirmative  defense, 
which  demurrer  was  sustained  by  the  superior  court,  and  the  court 
thereupon,  among  other  facts,  found  the  following,  which  are  matez'ial 
to  the  consideration  of  the  cause  by  this  court : 

"  7th.  That  the  total  indebtedness  of  said  county  on  the  9th  day  of 
March,  1893,  and  during  all  of  the  time  of  the  issue  of  the  warrants 
now  called  was  $85,441.92,  and  greatly  exceeded  the  constitutional 
limit  of  indebtedness  for  said  county,  after  deducting  therefrom  the 
cash  in  the  treasury  and  all  taxes  levied  and  uncollected. 

"  8th.  That  the  warrants  now  called  by  the  county  treasurer  are 
the  debts  contracted  after  said  9th  day  of  March,  1893,  and  were 
issued  between  the  2nd  day  of  April,  1893,  and  the  26th  day  of  July, 
1893,  during  all  of  which  time  said  indebtedness  of  $85,441.92  was 
outstanding,  and  all  of  said  warrants  now  called  were  and  are  in 
excess  of  the  constitutional  limit  of  indebtedness  of  said  county  and 
were  issued  without  the  assent  of  the  voters  of  said  county  first  had 
and  obtained  at  an  election  held  for  that  purpose,  and  they  have  not 
been  validated  by  any  vote  of  the  electors  of  said  county  since  their 


\ssue." 


*  Portions  of  opinion  omitted.  —  Ed. 


RAUCH   V.    CHAPMAN,  303 

Judgment  was  rendered  against  the  defendant  and  a  permanent 
injunction  issued  against  the  payment  of  the  warrants  designated  ia 
the  complaint.     The  defendant  appeals. 

1.  Respondent  maintains  here  that  the  payment  of  the  warrants  is 
inhibited  by  §  6  of  art.  8  of  the  constitution  of  this  state,  of  which 
the  part  material  for  consideration  is  as  follows:  "No  county,  city, 
town,  school  district  or  other  municipal  corporation  shall  for  any 
purpose  become  indebted  in  any  manner  to  an  amount  exceeding  one 
and  one-half  per  centum  of  the  taxable  property  in  such  county,  etc., 
without  the  assent  of  three-fifths  of  the  voters  therein  voting  at  an 
election  for  that  purpose.  .  .  .  Provided,  that  no  part  of  the  indebted- 
ness allowed  in  this  section  shall  be  incurred  for  any  purpose  other 
than  strictly  county,  city,  town,  school  district  or  other  municipal 
purposes;"  and  with  the  further  proviso  that  any  city  or  town  shall 
be  allowed  to  become  indebted  to  a  larger  amount,  not  exceeding  five 
per  centum  additional  for  supplying  such  city  or  town  with  water, 
light  and  sewers,  when  the  works  for  supplying  the  same  shall  be 
owned  and  controlled  by  the  municipality. 

•  ••••••• 

When  the  constitution  of  Washington  was  adopted  by  the  people 
of  the  newly-born  state,  the  various  county  governments  in  the  terri- 
tory were  recognized  and  tlieir  organizations  and  powers  in  a  great 
measure  continued.  A  large  body  of  laws  applicable  to  the  new 
state,  and  which  the  people  had  for  a  long  time  been  accustomed  to, 
were  found  and  continued  in  force.  At  this  time  some  of  the  coun- 
ties in  the  state  were  already  indebted  to  an  amount  equal  to  the 
constitutional  limitation  of  one  and  one-half  per  centum.  The  state 
itself  inherited  from  its  territorial  form  liabilities  which  very  nearly 
equalled  the  limitation  on  state  indebtedness  prescribed  in  §  1,  art.  8 
of  the  constitution.  The  several  counties,  in  addition  to  their  organ- 
ization for  local  purposes,  and  having  conferred  upon  them  the  power 
to  control  and  build  county  roads  and  bridges,  erect  public  buildings 
for  county  purposes,  and  do  many  other  things  connected  with  the 
county  as  a  corporation,  also  had  imposed  upon  them  certain  duties 
by  the  state,  and  became  governmental  agencies,  in  the  territory 
comprised  in  the  county,  for  the  state.  Section  11  of  art.  11  author- 
izes any  county,  city,  town  or  township  to  make  and  enforce  within 
its  limits  all  such  local  police,  sanitary  and  other  regulations  as  are 
not  in  conflict  with  general  laws.  Section  12  of  the  same  article 
provides : 

"  The  legislature  shall  have  no  power  to  impose  taxes  upon  coun- 
ties ...  or  upon  the  inhabitants  or  property  thereof,  for  county 
.  .  .  purposes,  but  may  by  general  laws  vest  in  the  corporate  author- 
ities thereof  the  power  to  assess  and  collect  taxes  for  such  purposes." 

The  duty  has  been  imposed  upon  the  several  counties  in  this  state 
to  provide  for  and  pay  certain  necessary  expenses  for  the  enforce- 
ment of  the  criminal  laws  of  the  state  and  for  expenses  incurred  at 


394  RAUCH   V.   CHAPMAN. 

the  regular  biennial  state  elections  at  which  county  and  state  ofRcera 
are  elected,  and  in  carrying  out  other  functions  of  the  state;  and 
also  to  make  expenditures  necessary  for  the  existence  of  the  county 
organization. 

Section  8,  art.  6  of  the  constitution,  provides  for  biennial  elec- 
tions. Section  5,  art.  11,  also  provides  for  the  election  in  the  several 
counties  of  boards  of  county  commissioners,  sheriffs,  county  clerks, 
treasurers,  prosecuting  attorneys,  and  other  county  officers  as  public 
convenience  may  require,  and  devolves  upon  the  legislature  the  power 
to  prescribe  their  duties  and  fix  their  terms  of  office,  and  to  regulate 
the  compensation  of  all  such  officers  in  proportion  to  their  duties, 
and  that  for  that  purpose  the  legislature  may  classify  the  counties  by 
population. 

2.  The  objects  of  government  have  usually  become  multiplied  with 
the  development  of  complex  and  artificial  conditions  of  society. 
There  is  much  controversy  at  times  among  our  statesmen  as  to  the 
necessary  and  proper  limitations  upon  the  powers  of  government, 
both  state  and  municipal,  but  all  arc  agreed  that  certain  necessary 
fundamental  functions  of  government  must  always  be  expressed  and 
exercised.  The  protection  of  life,  liberty  and  property,  the  conserva- 
tion of  peace  and  good  order  in  the  state,  cannot  remain  in  abeyance. 
These  functions  of  government  are  elementary  and  indestructible. 
The  constitutional  convention  which  framed,  and  the  sovereign  people 
who  adopted,  a  republican  form  of  government  for  the  state  of 
Washington,  had  these  known  principles  in  mind.  Section  10  of 
the  Declaration  of  Rights  prescribes:  "Justice  in  all  cases  shall  be 
administered  openly  and  without  unnecessary  delay;"  and  in  §  22  it 
is  declared :  '*  In  criminal  prosecutions  the  accused  shall  have  the 
right  to  .  .  .  have  compulsory  process  to  compel  the  attendance  of 
witnesses  in  his  own  behalf,  have  a  speedy  public  trial  by  an 
impartial  jury  of  the  county  in  which  the  offense  is  alleged  to  have 
been  committed.  ..."  Provision  is  also  made  in  the  constitution 
for  the  organization  and  maintenance  of  the  county  government  and, 
as  we  have  seen,  its  administration  is  ancillary  to  that  of  the  state. 
All  these  provisions  of  the  organic  law  are  alike  declared  to  be  man- 
datory. It  would  make  these  various  provisions  of  the  constitution 
contradictory  and  render  some  of  them  nugatory,  if  a  construction 
were  placed  upon  the  limitation  of  county  indebtedness  which  would 
destroy  the  efficiency  of  the  agencies  established  by  the  constitution 
to  carry  out  the  recognized  and  essential  powers  of  government.  It 
cannot  be  conceived  that  the  people  who  framed  and  adopted  the  cou- 
Btilution  had  such  consequences  in  view.  The  judicial  power  was 
vested  in  the  courts;  the  law  must  be  administered  through  them: 
the  jury  is  an  essential  part  of  the  judicial  procedure;  justice  must 
be  administered  without  unnecessary  delay  between  the  citizens  of 
the  state;  persons  accused  of  crimes  must  have  a  speedy  and  impar 


EATJCH   V.   CHAPMAN. 


395 


«ial  jury  trial;  compulsorj^  process  must  be  served  by  the  sheriff, 
witnesses  are  compelled  to  appear.  The  regulation  of  much  of  thie 
procedure,  and  the  compensation  of  jurors  and  witnesses,  as  well  as 
of  officers,  in  the  counties,  is  vested  in  legislative  discretion.  Sec- 
tion 1  of  art.  9  of  the  constitution  declares:  "It  is  the  paramount 
duty  of  the  state  to  make  ample  provision  for  the  education  of  all 
children  residing  within  its  borders;"  and  §  2,  same  article:  "the 
legislature  shall  provide  for  a  general  and  uniform  system  of  public 
schools."  Our  constitution  seems  to  have  added  to  the  proper  and 
essential  functions  of  free  government  the  maintenance  of  public 

schools. 

3.  The  construction  by  some  of  the  other  courts  of  similar  consti- 
tutional provisions  may  here  be  examined.  In  Grant  Count}/ v.  Lake 
Coicnty,  17  Ore.  453  (2"l  Pac.  447),  the  court,  referring  to  the  consti- 
tution of  Oregon,  said : 

"  The  constitutional  inhibition  that  no  county  shall  create  any 
debts  or  liabilities  which  shall,  singly  or  in  the  aggregate,  exceed 
the  sum  of  five  thousand  dollars,  except  to  suppress  insurrection  or 
repel  invasion,  does  not  imply  that  all  debts  and  liabilities  against  a 
county  over  and  above  that  sum  are  necessarily  obnoxious  to  that 
provision.  To  justify  the  court  in  finding  the  said  conclusion  of 
law,  it  should  have  found  that  the  county  created  the  indebtedness. 
Counties  do  not  create  all  the  debts  and  liabilities  which  they  are 
under;  ordinarily  such  debts  and  liabilities  are  imposed  upon  them 
by  law.  A  county  is  mainly  a  mere  agency  of  the  state  government 
—  a  function  through  which  the  state  administers  its  governmental 
affairs  —  and  it  has  but  little  option  in  the  creation  of  debts  and  lia- 
bilities against  it.  It  must  pay  the  salaries  of  its  officers,  the 
expenses  incurred  in  holding  courts  within  and  for  it,  and  various 
and  many  other  expenses  the  law  charges  upon  it,  and  which  it  ia 
powerless  to  prevent.  Debts  and  liabilities  arising  out  of  such  mat- 
ters, whatever  sum  they  may  amount  to,  cannot  in  reason  be  said  to 
have  been  created  in  violation  of  the  provision  of  the  constitution 
referred  to,  as  they  are  really  created  by  the  general  laws  of  the 
state,  in  the  administration  of  its  governmental  affairs.  Said  pro- 
vision of  the  constitution,  as  I  view  it,  only  applies  to  debts  and 
liabilities  which  a  county,  in  its  corporate  character,  and  as  an  arti- 
ficial person,  voluntarily  creates." 

This  decision  has  been  followed  by  the  same  court  in  Wormington 
V.  Pierce,  22  Ore.  606  (30  Pac.  450)  ;  Burnett  v.  Marldey,  23  Ore. 
436  (31  Pac.  1050),  and  Dorothy  v.  Pierce,  27  Ore.  373  (41  Pac.  668). 

The  supreme  court  of  California,  in  Lewis  v.  Widber,  99  Cal.  412 
(33  Pac.  1128),  observes: 

*' The  respondent  contends  .  .  .  that  he  should  not  pay  petitioner's 
salary  on  account  of  §  18  of  art.  XI  of  the  state  constitution,  which 
reads  as  follows:  'No  county,  city,  town,  township,  board  of  educa- 
tion, or  school  district,  shall  incur  any  indebtedness  or  liability  io 


396  BAKNARD  V.    KNOX  COUNTY. 

any  manner,  or  for  any  purpose,  exceeding  any  year  tlie  income  and 
revenue  provided  for  it  for  sucii  year,  without  the  assent  of  two-thirds 
of  the  qualified  voters,'  etc.  It  is  quite  apparent,  however,  that  this 
clause  of  the  constitution  refers  only  to  an  indebtedness  or  liability 
which  one  of  the  municipal  bodies  mentioned  has  itself  incurred, 
that  is,  an  indebtedness  which  the  municipality  has  contracted,  or  a 
liability  resulting,  in  whole  or  in  part,  from  some  act  or  conduct  of 
such  municipality.  Such  is  the  plain  meaning  of  the  language  used. 
The  clear  intent  expressed  in  the  clause  was  to  limit  and  restrict  the 
power  of  the  municipality  as  to  any  indebtedness  or  liability  which 
it  has  discretion  to  incur  or  not  to  incur.  But  the  stated  salary  of 
a  public  officer  fixed  by  statute  is  a  matter  over  which  the  munici- 
pality has  no  control,  and  with  respect  to  which  it  has  no  discretion; 
and  the  payment  of  his  salary  is  a  liability  established  by  the  legis- 
lature at  the  date  of  the  creation  of  the  office.  It,  therefore,  is  not 
an  indebtedness  or  liability  incurred  by  the  municipality  within  the 
meaning  of  said  clause  of  the  constitution." 

[After  citing  various  authorities,  some  of  which  are  in  conflict 
with  the  foregoing  cases.] 

We  are  constrained  to  rule  that  the  constitutional  limitation  of 
county  indebtedness  in  §  6  of  article  8  of  our  constitution,  does  nof 
include  those  necessary  expenditures  made  mandatory  in  the  consti- 
tution and  provided  for  by  the  legislature  of  the  state,  and  imposed 
upon  the  county;  that  the  payment  of  these  is  a  prior  obligation,  and 
other  liabilities  incurred  by  the  county  are  subject  and  inferior  to 
these  primary  obligations  which  must  of  necessity  always  continue. 

The  cause  is  reversed  and  remanded  to  the  superior  court  of 
Klickitat  county,  with  instructions  to  proceed  in  conformity  to  the 
views  expressed  in  this  opinion. 

Scott,  C.  J.,  and  Anders,  Dunbar  and  Gordon,  JJ.,  concur. 


BAR'NARD   v.   KNOX   COUNTY. 

1891.     105  Missouri,  382.1 

Appeal  from  Knox  Circuit  Court. 

H.  M.  Pollard^  for  appellant. 

Charles  D.  Steivart  and  William  Clancy,  for  respondent. 

Black,  J.  This  is  a  suit  upon  a  duly  protested  warrant  issued 
by  the  county  court  of  Knox  county,  to  George  D.  Barnard,  dated 
the  seventh  day  of  May,  1885,  for  883.90,  payable"  out  of  any  money 
in  the  treasury  appropriated  for  the  contingent  fund."  Barnard 
assigned  the  warrant  to  the  plaintiff  corporation. 

I'tit.  defense  is  that  the  debt,  for  which  the  warrant  was  issued, 

1  Argumeutb  omitted.  —  Ed. 


BARNARD   V.    KNOX   COUNTY.  397 

was  created  after  the  county  court  had  issued  warrants  in  excess  of 
the  revenue  for  1885.  In  anticipation  of  this  defense,  it  is  alleged 
in  the  petition  that  though  the  county  court  had  issued  warrants  in 
excess  of  the  total  revenue  for  that  year,  still  the  plaintiff's  debt 
was  created  by  law,  and  not  by  the  act  of  the  county  court,  and  that 
the  county  debts  for  that  year  created  by  law  were  less  than  the  county 
revenue  for  the  same  year. 

The  case  was  tried  on  the  following  agreed  facts:  "That,  on  the 
seventh  day  of  May,  1885,  the  clerk  of  the  county  court  of  Knox 
county,  Missouri,  bought  from  Geo.  D.  Barnard  certain  books  and 
stationery  for  $83.90;  that  said  books  and  stationery  were  suitable 
and  necessary  for  the  use  of  said  clerk  in  his  said  otiicial  capacity; 
that  thereupon  said  Barnard  presented  said  bill,  for  said  books  and 
stationery,  to  the  county  court  of  said  county,  which  said  court 
audited  and  allowed  said  bill,  and  issued  the  warrant  filed  herein; 
.  .  .  that  there  is  no  money  in  defendant's  treasury  now  to  pay  the 
same;  that,  at  the  time  of  issuing  said  warrant,  the  said  county  court 
hid  issued  warrants  in  excess  of  the  total  revenue  of  said  county  for 
the  year  1885,  raised  by  a  levy  of  fifty  cents  on  the  hundred  dollars, 
and  from  licenses  and  other  sources;  but  excluding  the  warrants 
issued  during  the  said  year  for  support  of  paupers,  and  roads,  and 
bridges,  the  remainder  did  not  exceed  such  fifty  cents  on  the  hundred 
dollars;  .  .  .  that  no  vote  of  the  people  of  the  county,  on  the  ques- 
tion of  paying  this  warrant,  or  the  creation  of  the  debt  evidenced 
thereby,  has  ever  been  had.  The  annual  revenue  of  the  county,  to 
the  extent  of  fifty  cents  on  the  one-hundred-dollar  valuation,  is  now 
entirely  consumed  by  the  ordinary  annual  expenses  of  the  county 
government." 

The  provisions  of  the  constitution  to  be  considered  in  the  disposi- 
tion of  this  case  are  found  in  sections  11  and  12,  of  article  10.  The 
first  provides:  "  For  county  purposes  the  annual  rate  on  property, 
in  counties  having  $6,000,000  or  less,  shall  not  in  the  aggregate 
exceed  fifty  cents  on  the  one-hundred-dollar  valuation."  The  same 
section  fixes  the  maximum  annual  rate  of  taxes  for  city  and  town 
purposes,  and  for  school  purposes,  and  contains  these  exceptions: 
First.  The  annual  rate  for  school  purposes  may  be  increased  to  a 
designated  amount  by  a  majority  vote  of  the  taxpayers.  Second.  The 
rate  may  be  increased  bj'  a  two- thirds  vote  for  the  purpose  of  erecting 
public  buildings.  The  rate  allowed  to  each  county  is  to  be  ascer- 
tained by  the  amount  of  taxable  property  therein,  according  to  the 
last  assessment.  "  Said  restrictions  as  to  rates  shall  apply  to  taxes 
of  every  kind  and  description,  whether  general  or  special,  except 
taxes  to  pay  valid  indebtedness  now  existing  or  bonds  which  may 
be  issued  in  renewal  of  such  indebtedness." 

Section  12  declares:  "  No  county  .  .  .  shall  be  allowed  to  become 
indebted  in  any  manner,  or  for  any  purpose,  to  an  amount  exceeding 
in  any  year  the  income  and^j-evenue  provided  for  such  year,  without 


398  BARNARD    V.   KNOX   COUNTY. 

the  assent  of  two-thirds  of  the  voters  thereof,  voting  at  an  election 
to  be  held  for  that  purpose;  nor  in  cases  requiring  such  assent  shall 
any  inJebteduess  be  allowed  to  be  incurred  to  an  amount  includ- 
ing existing  indebtedness,  in  the  aggregate,  exceeding  five  per  centum 
on  the  value  of  the  taxable  property  therein,"  etc. 

The  statute  makes  it  the  duty  of  the  county  court  at  its  May  term, 
in  each  year,  to  divide  the  revenue  collected,  and  to  be  collected,  into 
five  designated  and  described  funds,  one  of  which  is  a  contingent 
fund  not  to  exceed  one-fifth  of  the  total  revenue  of  the  county  for 
county  purposes  for  any  one  year;  and  each  fund  is  declared  to  be 
a  sacred  fund  for  the  purpose  for  which  it  is  designated.  R.  S.  1879, 
sees.  6818,  6819. 

In  1875  and  prior  thereto,  many  of  the  counties  and  cities  in  this 
state  were  burdened  with  debts,  because  of  bonds  issued  in  aid  of 
railroads,  some  of  which  were  never  built,  and  on  account  of  extrav- 
agance, frauds  and  defalcations  of  officials.  To  put  an  end  to  this 
state  of  affairs,  the  constitution  adopted  in  that  year  denied  to  any 
county  or  city  the  right  to  thereafter  take  stock  in,  or  loan  its  credit 
to,  any  railroad  company  or  other  corporations;  and,  by  the  two 
sections  before  mentioned,  sought  to  bring  the  administration  of 
county  affairs  to  a  cash  basis.  As  said  in  Book  v.  Earl,  87  Mo.  246, 
the  evident  purpose  of  the  framers  of  the  constitution  and  the  people 
in  adopting  it  was  to  abolish,  in  the  administration  of  county  and 
municipal  government,  the  credit  system,  and  establish  the  cash  sys- 
tem by  limiting  the  amount  of  tax  which  might  be  imposed  by  a 
county  for  county  purposes,  and  by  limiting  the  expenditures  in  any 
given  year  to  the  amount  of  revenue  which  such  tax  would  bring 
into  the  treasury. 

We  do  not  understand  counsel  for  the  appellant  to  dispute  these 
propositions;  but  the  claim  is  made  and  pressed  with  much  vigor, 
that  section  12  does  not  include  debts  like  that  for  which  the  warrant 
in  question  was  given.  The  line  of  argument  is  this:  As  the  statute 
makes  it  the  duty  of  the  county  clerk  to  provide  suitable  books  and 
stationery  for  his  office  (R.  S.  1879,  sec.  623),  a  debt  created  for 
such  a  purpose  is  not  one  incurred  or  created  by  the  county  court, 
but  is  a  debt  created  by  law,  and  that  such  debts  are  not  within  the 
prohibition.  Authorities  are  cited  which  give  support  to  such  a  dis- 
tinction. Grant  Co.  v.  Luke  Co.,  17  Or.  453;  Barnard  &  Co.  v. 
Knox  Co.,  37  Fed.  Rep.  563,  and  Rollins  v.  Lake  Co.,  34  Fed.  Rep. 
845.  The  case  last  cited,  it  may  be  observed,  was  reversed  by  the 
supreme  court  of  the  United  States.      130  U.  S.  662. 

On  the  other  hand  the  constitution  of  Colorado  contains  this  pro- 
vision: "And  the  aggregate  amount  of  indebtedness  of  any  county 
for  all  purposes,  exclusive  of  debts  contracted  before  the  adoption 
of  this  constitution,  shall  not  at  any  time  exceed  twice  the  amount 
above  limited,  unless,"  etc.  The  supreme  court  of  that  state  said, 
(vhen  speaking  of  this  clause:  "  The  limitation  being  applicable  to 


BARNAKD    V.    KNOX   COUNTY.  399 

d'l  debts,  irrespective  of  their  form,  it  follows  that  in  determining 
che  amount  of  county  indebtedness  county  warrants  are  to  be  taken 
into  account  and  any  warrant  which  increases  the  indebtedness  over 
and  beyond  the  limit  fixed  is  in  violation  of  the  constitutional  pro- 
vision, and  void."      The  People  ex  rel.  v.  May^  9  Col.  80-98. 

The  circuit  court  of  the  United  States  in  Rollins  v.  Lake  Co., 
supra,  when  having  under  consideration  the  clause  of  the  Colorado 
constitution  before  quoted,  held  that  warrants,  issued  for  fees  of 
witnesses,  jurors,  constables  and  sheriff,  were  not  within  the  pro- 
hibition, because  issued  in  payment  of  compulsory  obligations;  and, 
hence,  it  was  no  defense  in  an  action  upon  such  warrants  that  at  the 
time  they  were  issued  the  limit  fixed  by  the  constitution  had  been 
reached. 

The  supreme  court  of  the  United  States  when  speaking  upon  this 
question  in  the  same  case  said:  "  Neither  can  we  assent  to  the  prop- 
osition of  the  court  below  that  there  is,  as  to  this  case,  a  difference 
between  indebtedness  incurred  by  contracts  of  the  county,  and.  that- 
form  of  debt  denominated  '  compulsory  obligations. '  The  compul-_ 
sion  was  imposed  by  the  legislature  of  the  state,  even  if  it  can  be, 
said  correctly  that  the  compulsion  was  to  incur  debt;  and  the  legislar 
tiire  could  no  more  impose  it  than  the  couut}^  could  voluntarily  assume 
it,  as  against  the  disaliility  of  a  constitutional  prohibition.  Xor  does 
tTie  fact  that  the  constitution  provided  for  certain  county  officers,  and 
authorized  the  legislature  to  fix  their  compensation  and  that  of  other 
officials,  affect  the  question.  ...  In  short  we  conclude  that  article  6 
aforesaid  is  a  limitation  upon  the  power  of  the  county  to  contract  any 
and  all  indebtedness  including  all  such  as  that  sued  upon  in  this 
action;  and,  therefore,  under  the  stipulation  already  set  forth,  the 
county  is  entitled  to  judgment."  Lake  Co.  v.  Rollins^  130  U.  S. 
662. 

A  clause  in  the  constitution  of  Illinois  declares  that  "  no  county, 
city,  etc.,  shall  be  allowed  to  become  indebted  in  any  manner,  or  for 
any  purpose,"  beyond  a  stated  amount.  Yet  the  decisions  of  the 
supreme  court  of  that  state  recognize  no  such  distinction  as  that 
sought  to  be  made  in  the  case  at  bar.  The  result  of  the  decisions  of 
that  court  is,  that  it  can  make  no  difference  whether  the  debts  be 
created  for  necessary' current  expenses  or  for  something  else.  Prince 
V.  Citij  of  Quincy,  105  111.  138;  s.  c,  105  111.  215. 

The  supreme  court  of  Iowa  when  speaking  of  the  same  clause  in 
the  constitution  of  that  state  says:  "  The  language  of  this  provision 
is  very  general  and  comprehensive.  It  includes  indebtedness  in- 
curred in  any  manner  or  for  any  purpose."  City  of  Council  Bluffs 
V.  Stewart,  51  Iowa,  385.  It  is  true  the  clauses  in  the  constitutions 
of  the  states  just  named  prohibit  the  incurring  of  indebtedness 
beyond  a  specifi^ed  per  cent,  of  the  assessed  value  of  the  taxable 
property,  while  in  our  constitution  the  prohibition  is  asainst  the 
mcurring  of  an  indebtedness  in  excess  of  the  revenue  of  the  partic* 


400  BARNARD  V.    KNOX  COUNTY. 

ular  vear.  But  we  do  not  see  that  this  difference  affects  the  question 
in  hand.  The  object  of  all  these  provisions  is  to  fix  a  limit  to  county 
and  municipal  indebtedness. 

Our  constitution,  it  will  be  seen,  first  limits  the  rate  of  taxation 
for  county  purposes  to  fifty  cents  on  the  one-hundred-dollar  valuation 
in  counties  like  the  one  in  question.  This  rate  may  be  increased  by 
the  assent  of  the  qualified  voters  for  the  purpose  of  erecting  public 
buildings,  but  it  cannot  be  increased  even  by  such  assent  for  any 
other  purpose. 

We  have  held  that  a  county  court  cannot  levy  a  tax  in  excess  of 
the  fifty  cents  for  any  purpose,  except  for  the  purpose  of  erecting 
public  buildings,  and  for  the  purpose  of  paying  indebtedness  exist- 
ing at  the  date  of  the  adoption  of  the  constitution.  Arnold  v.  Haw- 
kills,  95  Mo.  569;  Black  v.  McGonigle,  103  Mo.  192.  The  maximum 
limit  of  the  rate  of  taxation  for  county  purposes  being  thus  fixed, 
section  12,  to  repeat,  declares:  "No  county,  city  .  .  .  shall  be 
allowed  to  become  indebted  in  any  manner  or  for  an}'  purpose  to  an 
amount  exceeding  in  any  year  the  income  and  revenue  provided  for 
such  year."  As  to  counties  the  only  exception  is,  that  with  the 
assent  of  the  voters  the  expenditures  may  be  increased  for  the  erec- 
tion of  a  courthouse  or  jail.  The  language  just  quoted  is  clear  and 
explicit  and  construes  itself;  it  is  broad  and  comprehensive  as  to  the 
character  of  the  indebtedness.  It  includes  indebtedness  created  in 
any  manner  or  for  any  'purpose. 

This  strong  and  comprehensive  language  admits  of  no  distinction 
between  debts  created  by  a  county  court  and  debts  created  by  law. 
In  a  sense  all  county  debts  are  created  by  law;  for  the  counties  pos- 
sess those  powers  and  those  only  which  are  conferred  upon  them  by 
the  constitution  and  laws  of  the  state.  While  it  is  the  duty  of  the 
county  court  to  care  for  paupers  and  insane  persons  and  to  build 
bridges  and  repair  roads,  still  the  county  court  is  governed  by  the 
statute  in  the  performance  of  these  duties.  Debts  incurred  for  such 
purposes  may  be  called  debts  created  by  law  as  well  as  debts  incurred 
by  the  county  clerk  for  books  and  stationery. 

Nor  does  it  make  any  difference  that  the  debt  in  question  was 
created  by  the  clerk  instead  of  the  county  court.  The  clerk  in  the 
purchase  of  the  books  and  stationery  acted  as  a  county  officer;  the 
debt  incurred  by  him,  if  he  did  not  exceed  his  authority,  is  just  as 
much  a  county  debt  as  one  incurred  by  the  county  court.  The  law 
confers  upon  various  county  officers  the  power  to  create  debts  for 
designated  purposes,  but  the  debts  are  all  county  debts  when  charge- 
able to  the  county.  The  county  clerk,  county  court  and  other  county 
officers  must  take  notice  of  these  constitutional  limitations,  and  exer- 
cise the  powers  conferred  upon  them  in  subordination  to  such  restric- 
tions. To  hold  otherwise  is  to  say  the  clerk  and  other  officers  may 
execute  statutory  powers  in  excess  of  constitutional  restrictions,  and 
thus  make  the  statute  laws  override  the  constitution. 


BARNARD  V.   KNOX  COUNTY.  401 

It  is,  of  course,  a  hardship  to  the  plaintiff  to  declare  this  warrant 
worthless,  but  we  cannot  dispose  of  the  question  on  any  such  surface 
view  of  the  matter.  The  constitution  seeks  to  protect  the  citizen  and 
taxpayer,  and  their  rights  are  not  to  be  overlooked.  It  is  the  duty 
of  persons  dealing  \fith  counties  and  county  otlicials,  as  well  as  of 
county  olllcials  themselves,  to  take  notice  of  the  limit  prescribed  by 
the  constitution.  1  Dill.  Munic.  Corp.  [4  Ed.]  sec.  134a.  Solicit- 
ing agents,  contractors  and  others  who  deal  with  county  officials  must 
see  to  it  that  the  limit  of  county  indebtedness  is  not  exceeded,  and, 
if  they  fail  to  do  this,  they  must  suffer  the  consequences.  Unless 
this  is  so  there  is  an  end  to  all  effort  to  bring  about  an  economical 
and  honest  administration  of  county  affairs.  If  this  scheme  of  county 
finances  built  up  by  the  constitution  is  a  mistake,  or  if  it  produces 
great  hardships  in  some  counties,  the  remedy  is  with  the  people  and 
not  with  the  courts.  "  What  a  court  is  to  do,  therefore,  is  to  declare 
the  law  as  written,  leaving  it  to  the  people  themselves  to  make  such 
changes  as  new  circumstances  may  require.".  Cooley  on  Const.  Lim. 
[5  Ed.]  67. 

The  plaintiff  insists  that  there  is  no  substantial  difference  between 
this  case  and  Potter  v.  Dour/las  Co.,  87  Mo.  240.  In  that  case  the 
plaintiff  sued  Douglas  county  for  services  performed  by  him  as  jailer 
of  Greene  county,  in  keeping,  boarding,  clothing  and  taking  to 
court  prisoners.  The  indebtedness  was  incurred  under  section  6090, 
Revised  Statutes,  1879.  The  agreed  statement  showed  "  that,  at  the 
time  the  fee  bill  was  presented  to  the  county  court,  the  revenue  for 
said  years  was  expended,  and  the  same  could  not  be  paid  without 
issuing  warrants  in  excess  of  the  income  and  revenue  for  said  years." 
On  this  statement  we  held  the  plaintiff"  could  recover.  It  is  to  be 
observed  that  the  agreed  statement  in  that  case  did  not  show  that  the 
jevenues  had  been  expended  when  the  indebtedness  was  incurred. 
Vov  aught  that  appears  there  may  have  been  revenues  unexpended 
and  set  apart  to  the  proper  fund  when  the  indebtedness  was  con- 
iracted.  Our  opinion,  however,  is  not  placed  on  any  such  ground. 
It  is  placed  upon  grounds  which  would  include  the  case  in  hand, 
and  which  are  inconsistent  with  what  has  been  said  on  the  present 
occasion.  There  is,  of  course,  a  difference  between  the  facts  in  that 
case  and  the  facts  in  the  present  one,  but  the  constitution  takes  no 
notice  of  such  differences.     That  case  is,  therefore,  overruled. 

Now  the  agreed  statement  in  this  case  does  not,  in  terms,  say  that 
the  contingent  fund  set  apart  for  1885  had  been  exhausted  when  the 
books  and  stationery  were  purchased ;  but  it  does  show  that  the  war- 
rant was  issued  at  the  date  of  the  purchase,  and  that  at  that  time  the 
county  court  had  issued  warrants  in  excess  of  the  total  revenue  for 
that  year.  This  statement  must  be  taken  in  connection  with  the 
petition  which  is  framed  upon  the  theory  that  the  whole  of  the  revenue 
bad  been  consumed,  unless  warrants  issued  for  the  support  of  paupers 
and  for  building   bridges  and  repairing  roads   are  to  be  excluded 


402  DAVIS    V.    CITY   OF   DES   MOINES. 

TVe  think  it  sufficiently  appears'  that  the  contingent  fund  had  been 
consumed  when  the  debt  sued  for  was  incurred.  Indeed,  this  propo- 
sition is  not  questioned  in  the  briefs. 

The  warrant  was  issued  in  violation  of  the  constitution,  and  is 
void.  Judgment  affirmed.  Barclay,  J.,  absent;  the  other  judges 
concur. 


DAVIS   V.    CITY   OF   DES   MOINES. 

18S7.     71  Towa,  500. 

Appeal  from  Polk  Circuit  Court. 

The  petition  sets  forth  that  the  defendant  is  already  indebted  to 
the  full  constitutional  limit;  that  the  plaintiff  is  the  owner  of  certain 
land  fronting  on  one  of  the  streets  of  the  city,  and  that  the  city,  by 
its  officers,  entered  into  a  contract  with  one  McCauIey  to  construct  a 
sewer  in  said  street,  and  to  pay  him  therefor  by  assessing  the  con- 
tract price  thereof  against  the  adjacent  property;  that  the  municipal 
authorities  are  about  to  make  said  assessment,  and  charge  the  same 
upon  the  lots,  and  proceed  to  collect  the  same  of  said  owner.  It  is 
prayed  that  the  said  contract  be  cancelled  and  declared  void,  and  the 
defendant  be  enjoined  from  in  any  manner  attempting  to  enforce 
said  contract.  The  defendant,  by  its  answer,  denies  that  it  has  con- 
tracted, or  proposes  to  contract,  an  indebtedness  for  the  construction 
of  said  sewer.  There  was  a  demurrer  to  the  answer,  which  was  over- 
ruled, and  the  plaintiff  appeals. 

Henry  S.   Wilcox,  for  appellant. 

James  H.  Dietrick  and  Hugh  Brennan,  for  appellee. 

EoTHROCK,  J.  The  question  to  be  determined  is,  did  the  contract 
in  question  create  an  indebtedness  against  the  city?  A  copy  of 
said  contract  is  exhibited  with  the  answer.  So  far  as  the  said  con- 
tract purports  to  create  an  obligation  against  the  city,  it  is  as  fol- 
lows: "  The  said  P.  H.  McCauley  agrees  and  herebj^  undertakes  to  do 
and  perform  said  work  in  accordance  with  the  plans  and  specifica- 
tions, at  the  following  rate  or  price,  to-wit:  one  dollar  and  seventy- 
four  cents  per  lineal  foot  or  square  j^ard,  which  price  shall  cover  the 
cost  of  the  entire  work.  The  said  cost  is,  under  the  law  and  ordi- 
nances of  said  city,  to  be  assessed  against  the  private  property  adja- 
cent to  or  fronting  on  the  street  upon  which  said  improvement  is 
made,  and  a  part  thereof,  to-wit:  in  seven  annual  installments,  as 
provided  by  the  law  and  ordinances  of  the  city,  with  six  per  cent 
interest.  Said  assessment  is  payable  as  follows:  When  such  assess- 
ment is  made,  and  any  portion  of  the  work  completed  and  accepted 
by  the  city,  certificates  thereof  shall  be  made  out  showing  the  amount 
levied  against  each  piece  of  property,  and  the  same  shall  be  delivered 
to  said  P.  H.  McCauley,  and  the  same  shall  be  received  by  him  in 


TUTTLE   V.   POLK.  403 

full  payment  for  said  work  or  improvement  for  the  payment  of  which 
"a  special  assessment  is  required  by  the  law  and  ordinances  of  said 
city,  and  delivered  to  said  P.  H.  McCauley  or  order.  Said  P.  H. 
McCauley  agrees  to  accept  said  certificates  in  full  payment  for  any 
and  all  work  performed  by  him  under  his  contract,  and  to  collect  the 
same  by  an}-  of  the  m.ethods  provided  by  law,  and  at  his  own  cost 
and  expense;  and  it  is  expressly  agreed,  by  and  between  the  parties 
to  this  contract,  that,  upon  the  issuing  of  certificates  to  said  P.  H. 
McCauley  for  any  and  all  work  done  under  this  contract,  the  same 
shall  be  received  by  him  in  full  payment  therefor,  without  recourse 
to  the  city  of  Des  Moines,  Iowa." 

It  is  provided  by  section  3,  article  11,  of  the  constitution,  that 
"  no  county  or  other  political  or  municipal  corporation  shall  be  allowed 
to  becom.e  indebted  in  any  manner,  for  any  purpose,  to  an  amount  in 
the  aggregate  exceeding  five  per  centum  on  the  value  of  the  taxable 
property  within  such  county  or  corporation,  to  be  ascertained  by  the 
last  state  and  county  tax-lists  previous  to  the  incurring  of  said 
indebtedness." 

It  seems  to  us  that  the  contract  in  q^ue^tjon  does  not  create  an 
indebtedness  against  the  city.  There  is  no  doubt  that  the  city  is" 
authorized  by  law  to  make  special  assessments  for  improvements  of 
this  character  'upoiT  property  adjacent  to  the  improvements.  Such 
are  the  plain  provisions  of  our  statute.  See  chapter  162,  Laws  1878, 
and  section  16,  c.  168,  Laws  1886.  The  contract  involved  in  this 
case  expressly  provides  that  the  certificates  issued  by  the  city  shall 
be  accepted  by  the  contractor  in  full  payment  for  his  work,  without 
recourse  on  the  city.  The  city  can  never  be  held  liable  to  any  action 
for  the  construction  of  the  sewer.  Its  resources  cannot  be  affected 
thereby.  Its  contract  is  fully  and  completely  performed  by  ascer- 
taining the  amount  properly  chargeable  to  the  adjacent  property,  and 
the  issuance  of  assessment  certificates  to  the  contractor. 

We  think  the  demurrer  to  the  answer  was  properly  overruled. 

Affirmed.'^ 


EOBINSON,   J.,    IN  TLTTLE    v.   POLK. 

1894.     92  Iowa,  433 ;  pp.  437-8  ;  pp.  441-2. 

Robinson,  J.  .  .  .  The  authority  under  which  the  city  acted  in 
entering  into  the  agreement  is  found  in  chapter  168  of  the  Acts  of 
the  Twenty-first  General  Assembly,  enacted  in  1886.  The  city  of 
Des  Moines  is  within  the  provisions  of  that  act.     It  authorizes  con- 

1  As  to  whether  the  city  would  be  liable  to  the  contractor  if  the  city  officers  neglect 
to  make  the  assessment  (or  if  the  city  officers  neglect  to  collect  the  assessment  in  cases 
where  the  duty  of  collection  rests  upon  the  city) ;  see  conflicting  authorities  cited  in 
German- American  Savings  Bank  v.  City  of  Spokane,  1897,  Supreme  Court  of  Washing 
ton,. 49  Pacific  Reporter,  542. 


404  TUTTLE   V.   POLK. 

tracts  for  paving  and  curbing  streets  and  constructing  sewers  in 
cities  to  which  it  applies,  and  provides  for  the  issuing  of  bonds  in 
payment.  The  cost  of  the  improvement  is  to  be  assessed  upon  the 
property  fronting  or  abutting  upon  it,  and  placed  on  the  tax  list  of 
the  county,  and  is  payable  at  the  office  of  the  county  treasurer.  All 
money  received  from  the  assessments  is  to  be  appropriated  to  the 
payment  of  the  interest  and  principal  of  the  bonds,  or  certificates,  if 
any  are  issued  under  section  16  of  the  act.  The  section  is  as  fol- 
lows: "  Section  16.  If  by  reason  of  the  prohibition  contained  in 
section  3,  article  11  of  the  constitution  of  this  state  it  shall  at 
any  time  be  unlawful  for  any  such  city  to  issue  bonds  as  by  this  act 
provided,  it  shall  be  lawful  for  such  citj^  to  provide  by  ordinance  for 
the  issuance  of  certificates  to  contractors,  who  under  contract  with 
the  city  shall  have  constructed  any  such  improvement,  in  payment 
therefor,  each  of  which  certificates  shall  state  the  amount  or  amounts 
of  one  or  more  of  the  assessments  made  against  an  owner  or  owners 
and  lot  or  lots  on  account  and  for  payment  of  the  cost  of  any  such 
improvement,  and  shall  transfer  to  the  contractor,  and  his  assigns, 
all  of  the  right  and  interest  of  such  city  to,  in  and  with  respect  to 
every  such  assessment,  and  shall  authorize  such  contractor  and  his 
assigns  to  receive,  sue  for,  and  collect,  or  have  collected,  every  such 
assessment,  embraced  in  any  such  certificate,  by  or  through  any  of 
the  methods  provided  by  law  for  the  collection  of  assessments  for 
local  improvements,  including  the  provisions  of  this  act"  The  cer- 
tificates in  question  were  issued  under  the  authority  of  that  section 
and  chapter  44  of  the  Acts  of  the  Twenty-second  General  Assembly. 
The  last  named  act  is  only  designed  to  cure  defects,  and  provide  for 
the  reassessment  and  relevy  of  special  taxes  in  certain  cases,  and 
does  not  otherwise  add  to  the  power,  if  any,  conferred  upon  the  city 
by  section  16,  quoted,  to  create  indebtedness.  There  is  nothing  iji^ 
that  section  which  makes  the  city  in  any  manner  liable  for  the  pay.- 
ment  of  the  certificates.  It  merely  authorizes  the  transfer  to  the  con- 
tractor or  his  assignee  of  all  the  right  and  interest  of  the  city  in  the 
assessment,  in  payment  of  the  improvements  made.  The  plain  legis- 
lative intent  was  to  provide  a  means  for  paying  for  improvements 
contemplated  by  the  act  without  the  incurring  of  any  liability  on  the 
part  of  the  city,  acting  under  the  provisions  of  section  16. 

It  is  said  that  the  provision  of  the  constitution  in  question  was 
intended  to  protect  the  taxpayer  from  the  reckless  and  corrupt  acts  of 
public  officers,  that  the  municipal  corporations  and  the  citizens 
thereof  are  one  and  the  same,  and  that  debts  contracted  by  the  cor- 
poration are  debts  of  the  citizens  and  taxpayers.  There  is  a  sense 
in  which  that  is  true,  but  it  is  not  recognized  in  the  constitution. 
That  does  not  limit  the  amount  which  may  be  levied,  in  the  form  of 
taxes  and  special  assessments,  upon  the  property  within  the  state.  It_ 
recognizes  the  county  and  other  political  and  municipal  corporatiohs 


TtJTTLE   V.   POLK.  ■  405 

as  beinsr  distinct  entities.     Although  none  can  incur  an  indebtedness 


^o 


ill  excess  of  five  per  centum  of  the  value  of  the  taxable  property 
within  its  limits,  yet  the  same  territory,  and,  therefore,  the  same 
property,  may  be  included  within  the  limits  of  different  corporations, 
as  those  of  a  county,  city,  or  town,  and  school  district,  and  be  sub- 
ject to  taxation  for  the  debt  of  each.  Strictly  speaking,  such  a 
debt  is  not  a  lien  upon  any  taxable  property,  nor  a  claim  against  any 
taxpayer,  until  a  levy  or  an  assessment  has  been  made.  Some  prop- 
erty may  be  within  the  corporate  limits  when  a  debt  is  created,  and 
without  them  when  the  tax  for  its  payment  is  assessed.  So  the 
property  owner,  whose  influence  helps  to  create  the  debt,  may  have 
no  property  taxable  within  the  corporate  limits  when  the  debt 
becomes  due.  It  seems  clear  that  in  such  cases  the  debt  of  the  corpo- 
ration is  not  primarily  the  debt  of  the  owners  of  property  within  its 
limits,  and  the  case  is  not  different,  in  a  legal  sense,  when  an  assess- 
ment is  made  tor  the  payment  of  the  debt  at  the  time  it  is  created, 
although  in  that  case  each  property  owner  who  has  property  subject 
to  assessment  may  be  liable  for  a  definite  portion  of  the  debt.  In 
this  case  the  city  attempted  to  enter  into  a  contract  for  paving,  for 
which  a  fixed  compensation  was  to  be  paid.  The  contract  did  not 
require  any  payment  to  be  made  by  the  city,  excepting  in  certificates, 
but  provided  that  the  agreed  price  should  be  collected  by  means  of 
assessments,  yhe  paving  of  the  streets  is  one  of  the  purposes  for 
which  the  city  exists,  and  for~wWcH  it_mi£ht  have  assumed  liability, 
haxTTts  debt  not  reached  the  constitutional  limit;  but  it  guarded 
against  the  assuming  of  any  liability,  and  placed  the  burden  of  the 
iin})iovement  upon  the  owners  of  property  which  fronted  upon  it. 
That  right  was  given  by  a  statute  which  was  especially  designed  to 
authorize  the  making  of  such  improvements  without  cost  to  the  city, 
and  we  find  nothing  to  prevent  giving  it  full  effect.  "We  do  not  think 
there  is  any  sufficient  reason  for  holding  that  the  city  is  in  any 
respect  liable  for  the  amounts  represented  by  the  certificates,  nor 
that  the  obligation  of  the  taxpayer  is  the  debt  of  the  city.  In  Davis 
V.  City  of  Des  Moines^  71  Iowa,  500,  32  N.  W.  Rep.  470,  it  appeared 
that  a  contract  for  the  construction  of  a  sewer  was  entered  into, 
similar  to  the  one  attempted  to  be  made  in  this  case,  and  under  the 
same  statute.  It  was  held  that  an  assessment  certificate  issued  pur- 
suant to  the  contract  to  pay  for  the  improvement  did  not  create  an 
indebtedness  against  the  city.  We  conclude  that  section  16  of  the 
Act  of  the  Twenty-first  General  Assembly  in  question  is  not  uncon- 
stitutional, as  attempting  to  provide  for  the  creation  of  a  debt  in 
excess  of  the  amount  authorized  by  the  constitution. 


406  ADDYSTON   PIPE   <fe   STEEL   COMPANY   V.   CORRY. 


ADDYSTON  PIPE  &  STEEL  COMPANY  v.  CORRY. 

1900.     197  Pa.  41. 

Mitchell,  J.^  The  city  of  Corry  formerly  contracted  for  the  build- 
ing of  a  sewer,  the  contractor  performed  the  work,  the  city  accepted  it, 
and  is  in  possession,  but  it  now  seeks  to  escape  payment  on  the  ground 
that  its  contract  was  ultra  vires.  If  this  is  true  the  overruling  require- 
ments of  public  policy  compel  us  to  hold  the  defense  good  in  law,  how- 
ever unjust  and  dishonest  in  morals.  But  the  invalidity  of  the  contract 
should  be  clearly  established,  and  the  burden  of  showing  it  is  on  the 
city.  This  being  a  case  stated  all  facts  not  contained  in  it  must  be 
assumed  not  to  exist,  and  the  consequences  must  fall  on  the  party  hav- 
ing the  burden  of  proof. 

The  contract  called  for  the  building  of  a  sewer  for  the  price  of  857,- 
000,  $9,300  of  which  was  to  be  paid  out  of  the  general  sewer  fund,  and 
the  remainder  to  be  assessed  upon  the  property  benefited  by  the  con- 
templated sewer.  The  city  by  ordinance  appropriated  the  $9,300  out 
of  the  general  sewer  fund  and  it  was  duly  paid,  so  that  it  is  only  mate- 
rial to  the  present  inquiry  so  far  as  it  may  bear  upon  the  validity  of 
the  contract  at  the  time  it  was  made.  By  ordinance  and  proceedings 
in  court  the  rest  of  the  contract  price  was  duly  assessed  upon  the  prop- 
erty benefited,  including  that  which  abutted  on  the  line  of  the  sewer, 
and  some  that  did  not.  The  city  collected  all  of  the  assessments  of 
the  former  class  and  many  of  the  latter,  and  has  paid  out  all  the  or- 
ders on  the  treasurer  given  to  the  contractor  so  far  as  the  funds  col- 
lected would  go.  But  some  owners  of  non-abutting  property  ha\ing 
resisted  payment,  the  assessments  of  that  class  were  held  invalid,  and 
the  funds  not  being  produced  from  the  expected  source,  payment  of 
the  outstanding  orders  was  refused  and  the  holder  brought  this  suit 
upon  them. 

At  the  date  of  the  contract  in  1891  it  is  admitted  that  the  debt  of 
the  city  of  Corry  was  in  excess  of  its  constitutional  limit,  but  several 
years  having  been  consumed  in  the  building  of  the  sewer  the  debt 
meanwhile  had  been  so  far  reduced  that  the  balance  due  on  this  con- 
tract could  be  paid  without  transgressing  the  constitutional  restrictions. 
On  this  point,  however,  the  court  below  rightly  held  that  the  validity 
of  the  contract  must  be  determined  as  of  the  time  it  was  made.  The 
question  therefore  is,  did  this  contract  increase  the  debt  of  the  city  of 
Corry  at  the  date  of  its  execution. 

As  to  the  $9,300  to  be  paid  by  the  city  out  of  the  general  sewer 
fund,  there  is  nothing  in  the  case  stated  to  show  that  the  amount  was 
not  then  in  the  city  treasury  or  payable  and  subsequently  paid  out  of 

1  Statement  of  facts  and  opinion  omitted.  —  Ed. 


ADDYSTON   PIPE   &  STEEL   COMPANY   V.   COREY.  407 

the  current  revenues.  This  item  therefore  did  not  increase  the  city's 
indebtedness  in  the  prohibited  sense.  There  is  no  constitutional  re- 
striction on  municipal  expenditure,  provided  it  is  paid  as  it  goes. 
AVhat  is  prohibited  is  the  incurring  of  debt.  If  the  city  has  the  money 
on  hand  or  provides  at  the  time  a  present  means  of  raising  it  other- 
wise than  by  loan,  it  may  contract  for  expenditure  without  restriction. 
In  Appeal  of  the  City  of  Erie,  91  Pa.  398,  Gordon,  J.,  quoting  from 
Grant  v.  Citi/  of  Davenport,  36  Iowa,  396,  says:  "When  a  contract 
made  by  a  municipal  corporation  pertains  to  its  ordinary  expenses  and 
is,  together  with  other  like  expenses,  within  the  limits  of  its  current 
revenues  and  such  special  taxes  as  it  may  legally  and  in  good  faith  in- 
tend to  levy  therefor,  such  contract  does  not  constitute  the  incurring 
of  indebtedness  within  the  meaning  of  the  constitutional  provision  lim- 
iting the  power  of  municipal  corporations  to  contract  debts."  And  he 
adds :  "If  the  contracts  of  municipal  corporations  do  not  overreach 
their  current  revenues,  no  objections  can  lawfully  be  made  to  them, 
however  great  the  indebtedness  of  such  municipalities  may  be  ;  for  in 
such  case  their  engagements  do  not  extend  beyond  their  present  means 
of  payment,  and  so  no  debt  is  created."  This  is  quoted  with  approval 
by  our  Brother  Dean  in  Wade  v.  Oakmont  Boro.,  165  Pa.  479,  488. 

It  is  not,  however,  always  possible  to  adapt  present  action  to  future 
results  with  absolute  precision,  and  if  means  are  adopted  which  in 
good  faith,  according  to  reasonable  expectation,  will  produce  a  suffi- 
cient fund,  the  contract  entered  into  on  the  faith  of  them  should  not 
be  held  unlawful  on  account  of  an  unintentional  miscalculation,  or  an 
accidental  and  unexpected  failure  to  produce  the  full  result.  Thus  if  a 
city  at  the  time  of  making  a  contract  levies  a  special  tax  in  good  faith 
supposed  to  be  adequate  to  meet  it,  but  in  consequence  of  fire  or  flood 
or  decline  in  values  the  result  is  an  insufficient  fund,  it  cannot  be  held 
that  the  contract  good  at  its  inception  would  thereby  be  made  bad. 
The  constitutional  restriction  was  not  intended  to  make  municipalities 
dishonest,  nor  to  prevent  those  who  contract  with  them  from  collecting 
their  just  claims,  but  to  check  rash  expenditure  on  credit,  and  to  pre- 
vent loading  the  future  with  the  results  of  present  inconsiderate  ex- 
travagance. 

In  the  present  case  the  city  of  Corry  provided  the  contract  price  of 
the  sewer  by  an  appropriation  of  money  which,  as  already  said,  we 
must  assume  to  have  been  in  the  treasury,  and  by  assessments  upon 
the  property  benefited.  There  is  nothing  to  indicate  that  these  assess- 
ments were  not  in  good  faith  and  reasonable  expectation  supposed  to 
be  adequate  to  produce  the  required  fund  and  offered  and  accepted  b}^ 
the  contracting  parties  in  the  mutual  belief  iu  their  validity.  So  far  as 
they  were  upon  abutting  property  they  fulfilled  their  intended  purpose. 
The  distinction  in  regard  to  non-abutting  property  had  not  then  been 
made,  and  was  not  in  contemplation  of  either  side.  When  it  was  de- 
termined that  this  part  of  the  agreed  means  of  payment  would  be  un- 
available, the  loss  should  in  equity  and  justice  fall  on  the  city  which 


408  CLAYTON   V.   HALLETT. 

has  received  the  full  consideration  stipulated  for,  and  to  this  extent 
paid  nothing. 

The  cases  on  this  subject  are  conflicting.  See  Dillon  on  Municipal 
Corporations  (4th  ed.),  sees.  480-482  and  notes.  They  show  that  there 
is  no  disposition  of  the  question  which  is  wholly  free  from  difficulty. 
We  have  preferred  to  follow  the  line  which  we  think  not  inferior  in 
just  legal  reasoning,  while  clearly  superior  in  the  honesty  and  justice 
of  the  result  reached. 

There  is  another  view  of  this  particular  case  which  leads  to  the  same 
conclusion.  As  already  said  the  building  of  the  sewer  occupied  sev- 
eral years.  During  the  progress  of  the  work  differences  arose  in  re- 
gard to  payments,  and  in  1895  a  compromise  was  agreed  upon  between 
the  contractor  and  a  committee  of  the  city  council,  subsequently  rati- 
fied by  ordinance,  whereby  the  outstanding  orders  in  favor  of  the  con- 
tractor were  canceled,  and  new  orders  issued  against  which  the  city 
stipulated  that  no  defense  should  be  made  by  it.  Among  such  new  or- 
ders are  those  now  sued  on.  The  validity  of  the  assessments  on  non- 
abutting  i)roperty  was  then  undecided.  The  contractor  agreed  to  furnish 
additional  counsel  and  aid  in  the  prosecution  of  a  test  case  on  this  sub- 
ject, and  to  abate  the  sum  of  $550  from  his  claim,  should  such  suit  be 
decided  against  the  city.  This  compromise  was  carried  out  by  the 
parties  except  as  to  the  payment  of  the  orders  involved  in  this  suit. 
No  reason  is  shown  why  it  was  not  entirely  valid  and  binding.  The 
case  stated  does  not  show  that  the  stipulated  payments  on  these  orders 
could  not  at  that  time  have  been  made  from  money  in  the  treasury,  or 
from  current  revenue,  even  if  that  fact  had  been  a  necessary  element 
in  the  validity  of  the  compromise. 

Judgment  reversed  and  judgment  directed  to  be  entered  for  the 
plaintiff  for  $6,000  with  iuterest.i 


Section  VII.  —  Power  to  acquire,  manage,  and  dispose  of  property. 

CLAYTON  V.  HALLETT. 

1902.     30  Colo.  231. 

George  "W.  Clayton  by  his  last  will  and  testament  gave  to  the  Cor- 
poration of  Denver  all  the  residue  of  his  estate  in  trust  to  establish  and 
maintain  a  college  for  the  educ^yiou  of  pjoor  white  male  orphan  children. 

1  See  also  Lake  Count  if  v.  Rollins,  130  IT.  S.  662;  Farqtiharson  x.Yenrgm,  24  Wash. 
649,  64  Pac.  717 ;  La  Porte  v.  Gamewell  F.  A.  T.  Co.,  146  Ind.  466,  45'n.  E.  588,  35 
L.  K.  A.  686,  58  Am.  St.  Rep.  359 ;  Voss  v.  Waterloo  Water  Co.,  163  Ind.  69,  71  N.  E. 
208,  106  Am.  St.  Rep.  201 ;  Reynolds  v.  Waterville,  92  Me.  292,  42  Atl.  553;  McGil- 
livraii  V.  Joint  School  Dist.,  112  Wis.  354,  88  N.  W.  310;  Conner  v.  Nevada,  188  Mo. 
148,  86  S.  W.  256,  107  Am.  St.  Rep.  314. 


CLAYTON   V.   IIALLETT.  409 

The  next  of  kin  filed  tliis  complaint  to  have  the  residuary  clause  de- 
clared null  and  void.^ 

Steele,  J.  ...  It  may  be  stated  as  a  general  proposition  of  law, 
that  a  corporation  capable  of  holding  real  estate  is  capable  also  of 
executing  a  charitable  trust,  unless  the  statute  or  the  articles  of  in- 
corporation prohibit  it.  And  unless  specially  restrained,  municipal 
coi-'porations  may  take  and  hold  property  in.  their  own  right  by  direct 
gift,  conveyance  or  devise,  in  trust,  for  purposes  germane  to  the  ob- 
jects of  the  corporation,  or  which  will  promote,  aid,  or  assist  in  carry- 
ing out  or  perfecting  those  objects.  So,  in  this  case,  unless  the  objeets 
of  the  incor})oration  of  the  city  of  Denver  are  foreign  to  the  purposes 
expressed  in  this  trust,  the  city  of  Denver  is  capable  of  taking  the 
property-  and  executing  the  trust  in  accordance  with  the  provisions  oL 
the  will. 

It  is  said  that  by  the  constitution  and  laws  of  Colorado  the  munici- 
palities of  the  state  are  inferentially  prohibited  from  maintaining 
schools  ;  that  that  function  of  government  is  left  to  the  school  districts 
of  the  state ;  and  that  this  provision  of  the  will  of  George  W.  Clayton 
should  not  be  enforced  because  of  the  policy  of  the  state  so  expressed. 
As  far  as  the  policy  of  the  state  is  concerned,  the  act  of  1901  enabling 
the  city  of  Denver  to  take  gifts  by  devise  declares  it  to  be  in  favor  of 
the  city's  accepting  such  devise. 

Gilbert  Hatheway  died  in  1871,  and  hv  "will  gave  to  the  corporation 
of  the  village  of  New  Baltimore  fifteen  thousand  dollars  to  be  used  in 
the  erection  of  a  school  building  to  be  used  as  a  high  school  and  to  be 
suitable  for  that  purpose,  and  to  be  known  as  the  Hatheway  School. 
The  legislature  of  Michigan,' in  the  year  1873,  passed  an  act  enabling 
the  village  to  accept  the  gift.  In  the  case  of  Hatheioaij  v.  Sackett, 
32  Mich.  99,  a  case  in  which  this  legacy  was  under  consideration,  the 
court  said:  "They  (the  plaintiffs  in  error)  insist  that  our  general 
state  policy  is  opposed  to  all  connection  between  village  government 
and  school  administration,  and  then  seek  to  infer  that  this  general 
policy  is  applicable  to  this  specific  case.  But  the  act  of  1873  negatives 
this  inference ;  because,  whatever  its  force  as  an  enabling  act,  it  is,  at 
least,  a  direct  and  explicit  expression  of  the  sense  of  the  legislature 
that  in  truth  it  is  not  impolitic  for  the  village  of  New  Baltimore  to  ac- 
cept this  very  bequest.  We  have,  then,  distinct  and  solemn  evidence 
that  the  legislature  have  considered  it  entirely  consistent  for  the  cor- 
poration to  have  the  identical  legacy  in  question." 

It  is  said  by  Judge  Dillon,  in  his  work  on  Municipal  Corporations, 
that  "  Municipal  and  public  corporations  may  be  the  objects  of  public 
and  private  bount3\  This  is  reasonable  and  just.  They  are  in  law 
clothed  with  the  power  of  individuality.  They  are  placed  b}'  law  un- 
der various  obligations  and  duties.     Burdens  of  a  peculiar  character 

1  This  short  statement  is  substituted  for  that  of  the  Reporter.  Only  so  much  of 
the  opinion  as  discusses  the  power  of  a  municipal  corporation  to  take  property  in 
trust  is  given.  —  Ed. 


410  CLAYTON   V.    HALLETT. 

rest  upon  compact  populations  residing  within  restricted  and  narrow 
limits,  to  meet  which  property  and  revenues  are  absolutely  necessary, 
and,  therefore,  legacies  of  personal  property,  devises  of  real  property, 
and  grants  or  gifts  of  either  species  of  property  directly  to  the  corpo- 
ration or  for  its  own  use  and  benefit,  intended  to  and  which  have  the 
effect  to  ease  it  of  its  obligations  or  lighten  the  burden  of  its  citizens, 
are,  in  the  absence  of  disabling  or  restraining  statutes,  valid  in  law. 
Thus,  a  conveyance  of  land  to  a  town  or  other  public  corporation,  for 
benevolent  public  purposes,  as  a  site  for  a  school  house,  city  or  town 
house,  and  the  like,  is  based  upon  a  sufficient  consideration,  and  such 
conveyances  are  liberally  construed  in  support  of  the  object  contem- 
plated."    (§  5G6.) 

And  in  Perry  on  Trusts,  §  43,  it  is  said  :  Municipal  corporations 
cannot  "  act  as  trustees  if  they  are  forbidden  to  take  and  hold  lands, 
as  by  the  statutes  of  mortmain,  nor  if  they  are  not  empowered  to  take 
the  property.  But  if  the  trusts  are  within  the  general  scope  of  the 
purposes  of  the  institution  of  the  corporation,  or  if  they  are  collateral 
to  its  general  purposes,  but  germane  to  them,  as  if  the  trusts  relate 
to  matters  which  will  promote  and  aid  the  general  purposes  of  the  cor- 
poration, it  may  take  and  hold,  and  be  compelled  to  execute  them,  if 
it  accepts  them.  Thus  towns,  cities,  and  parishes  may  take  and  hold 
property  in  trust  for  the  establishment  of  colleges,  for  the  purjwse  of 
educating  the  poor,  for  the  relief  of  the  poor,  though  not  paupers,  by 
furnishing  them  fuel  at  a  low  price,  and  for  the  support  of  schools,  or 
for  any  educational  or  charitable  purposes  within  the  scope  of  its  char- 
ter."    And  cases  are  cited  in  support  of  the  text. 

Charles  McMichen,  a  citizen  and  resident  of  Cincinnati,  made  bis 
will  in  1855,  and  died  in  1858  without  issue.  He  devised  certain  real 
and  personal  property  to  the  city  of  Cincinnati  and  its  successors,  in 
trust,  forever,  for  the  purpose  of  building,  establishing,  and  maintain- 
ing, as  far  as  practicable,  two  colleges  for  the  education  of  boys  and 
girls.  The  supreme  court  of  the  United  States,  in  Perin  v.  Carey,  24 
Howard,  465,  held,  that  this  was  a  valid  devise,  and  that  "the  city  of 
Cincinnati,  as  a  corporation,  is  capable  of  taking  in  trust  devises  and 
bequests  for  charitable  uses,  and  can  take  and  administer  the  devises 
and  bequests  in  the  will  of  C.  McMichen."  Upon  this  subject  of  the 
authority  of  municipal  corporations  to  administer  a  trust,  Mr.  Justice 
Wayne,  speaking  for  the  court,  said :  "  The  law  is,  that  wiiere  the 
corporation  has  a  legal  capacity  to  take  real  or  personal  estate,  then 
it  may  take  and  hold  it  upon  trust  in  the  same  manner  and  to  the  same 
extent  as  private  persons  may  do.  It  is  true  that  if  the  trust  be  re- 
pugnant or  inconsistent  with  the  proper  purposes  for  which  it  was  cre- 
ated, that  may  furnish  a  good  reason  why  it  may  not  be  compelled  to 
execute  it.  In  such  a  case,  the  trust  itself  being  good,  will  be  executed 
under  authority  of  a  court  of  equity.  Neither  is  there  any  positive  ob- 
jection, in  point  of  law,  to  a  corporation  taking  property  upon  trust 
not  strictly  within  the  scope  of  the  direct  purposes  of  its  institutions, 


CLAYTON   V.    IIALLETT.  411 

but  collateral  to  them,  as  for  the  benefit  of  a  stranger  or  another  cor- 
poration. But  if  the  purposes  of  the  trust  be  germane  to  the  objects 
of  the  corporation,  if  they  relate  to  matters  which  will  promote  and 
perfect  these  objects,  if  they  tend  to  the  suppression  of  vice  and  im- 
morality, to  the  advancement  of  the  public  health  and  order,  and  to 
the  promotion  of  trade,  industry,  and  happiness,  where  is  the  law  to  be 
found  which  prohibits  the  corporation  from  taking  the  devise  upon 
such  a  trust  in  a  state  where  the  statutes  of  mortmain  do  not  exist, 
the  corporation  itself  ha\-ing  an  estate  as  well  by  devise  as  otherwise  ? 
We  know  of  no  authority  which  inculcates  such  a  doctrine,  or  prohibits 
the  execution  of  such  trusts,  even  though  the  act  of  incorporation  may 
have  for  its  main  objects  mere  civil  and  municipal  government  and 
powers." 

Stephen  Girard  died  in  the  year  1831,  and  by  his  will  devised  and 
bequeathed  in  the  city  of  Philadelphia  the  residue  of  his  estate  in  trust 
for  the  establishment  and  support  of  a  permanent  college  for  the  edu- 
cation of  poor  white  male  orphans.  This  devise  was  sustained  by  the 
Supreme  Court  of  the  United  States,  and  the  court  held,  that  "  The 
corporation  of  the  city  of  Philadelphia  is  capable  of  taking  under  a 
devise  of  real  and  personal  estate  in  trust  for  the  establishment  and 
support  of  a  college  for  poor  orphan  boys,  and  can  execute  the  trust. 
Vidal  v.  Girard,  2  How.  61. 

Bryan  Mullanphy  died  in  the  year  1851,  and  by  his  will  devised  and 
bequeathed  the  undivided  one-third  of  his  property  to  the  city  of  St. 
Louis,  in  trust,  "to  be  and  constitute  a  fund  to  furnish  relief  to  all 
poor  emigrants  and  travelers  coming  to  St.  Louis  on  their  way  to  settle 
in  the  West,"  and  this  trust  was  sustained  by  the  Supreme  Court  of 
Missouri,  in  the  case  of  Chambers  v.  City  of  Si.  Louis,  29  Mo.  543. 

It  is  said  that  the  legislature  has  not  granted  to  the  city  of  Denver 
authority  to  acquire  and  hold  real  and  personal  property,  except  as  it 
is  necessary  for  the  public  uses  of  the  inhabita?its  thereof,  and  that  for 
that  reason  the  bequest  and  devise  to  the  city  of  Denver  is  an  invalid 
one  and  should  be  declared  void,  and  the  court  should  hold  that  as  to 
his  residuary  estate  George  W.  Clayton  died  intestate.  The  decisions 
are,  as  we  have  cited,  to  the  effect  that  where  municipal  corporations 
are  organized  for  purely  governmental  purposes,  they  may  accept  gifts 
for  charity  if  the  charity  is  germane  to  the  general  purposes  of  the 
organization.  The  general  purpose  of  all  municipal  corporations  is  to 
promote  the  general  welfare  and  happiness  of  the  people  residing 
therein.  Such  was  the  purpose  of  the  legislature  in  granting  to  the 
city  of  Denver  its  charter.  To  say  that  because  this  devise  is  for  the 
benefit  of  a  class  of  the  inhabitants  of  the  city  of  Denver  or  elsewhere 
it  is  a  private  and  not  a  public  charity  is  contrary  to  the  decisions  upon 
the  subject. 

The  sections  of  the  charters  of  Philadelphia,  Cincinnati,  and  St. 
Louis  quoted  in  the  cases  cited  show  that  the  charters  of  these  cities 
and  the  charter  of  Denver  are  practically  alike.     In  each  is  contained 


412  CLAYTON   V.   HALLETT. 

the  general  provisions  found  in  nearly  all  charters,  that  tend  to  the 
suppression  of  vice  and  immorality,  to  the  advancement  of  the  public 
health  and  order,  and  to  the  promotion  of  trade,  industry,  and  happi- 
ness. If  the  city  of  Philadelphia  can  hold  property  in  trust  for  the 
education  of  poor  white  male  orphans,  and  the  city  of  Cincinnati  can 
lawfully  execute  a  trust  for  the  education  of  boj-s  and  girls,  and  the 
city  of  St.  Louis  can,  without  violating  its  organic  law,  administer  a 
trust  "for  the  purpose  of  furnishing  aid  to  poor  emigrants  "  passing 
through  the  city,  there  is  no  apparent  reason  why  Denver,  under  her 
charter,  which  provides  for  the  entertainment  of  visitors  (trade),  for 
the  encouragement  of  manufactures  (industry),  for  the  assistance  of 
charitable  organizations,  and  for  the  good  order,  health,  good  govern- 
ment, and  general  welfare  of  the  city,  cannot  accept  and  execute  a 
trust  for  the  education  of  poor  white  male  orphans. 

Furthermore,  the  legislature,  by  the  act  of  1901,  clothed  the  city  of 
Denver  with  full  power  and  authority  to  accept  the  trust  created  under 
the  will,  and  to  administer  it  according  to  the  terms  and  provisions  of 
the  devise.  It  is  said  that  this  devise  must  be  construed  with  reference 
to  the  capacity  of  the  city  at  the  time  of  the  death  of  George  W.  Clay- 
ton; that  the  estate,  at  the  time  of  George  W.  Clayton's  death,  vested 
either  in  the  heirs  or  in  the  trustee  named.  We  cannot  agree  with 
counsel  in  this  contention.  The  devise  to  the  trustee  is  in  the  nature 
of  an  executory  devise.  It  is  to  take  effect  when  the  executor,  Moses 
Hallett,  or  an  administrator  with  the  will  annexed,  marshals  the  assets 
of  the  estate,  selects  a  site,  and  erects  a  building,  in  accordance  with 
the  provisions  of  the  will.  Then,  and  not  till  then,  in  our  judgment, 
is  the  city  of  Denver  called  upon  to  accept  or  reject  the  trust  imposed. 


Here,  then,  is  a  public  charity.  Through  it  Mr.  Clayton  seeks  to 
bring  the  minds  and  hearts  of  poor  orphans  under  the  refining  influence 
of  education.  After  making  such  provision  as  he  thought  proper  for 
the  natural  objects  of  his  bounty,  he  has  selected,  as  deserving  of  his 
benevolence,  the  poor  white  orphan  boys  of  Denver  and  Colorado,  and 
has  devoted  the  residue  of  his  great  fortune  to  the  erection  and  support 
of  a  permanent  college  for  their  free  instruction  and  maintenance,  that 
they  may  become  useful  citizens  and  honorable  members  of  society. 
It  is  an  indulgent,  edifying,  and  worthy  charity.  It  will  lessen  Den- 
ver's burdens  of  government.  To  thousands  of  poor  orphan  boys  it 
will  be  a  blessing  forever,  and  it  will  be  by  them  forever  blest. 

Our  conclusions,  therefore,  are :  That  "  the  education  and  prefer- 
ment of  orphans,"  being  one  of  the  subjects  mentioned  in  the  statute 
of  43d  Elizabeth,  chapter  4,  is  to  be  regarded  in  Colorado  as  a  public 
charity.  That,  there  being  power  vested  in  the  executor  and  the  board 
of  trustees  of  the  college  to  select  the  objects  of  the  testator's  bounty, 
the  trust  created  by  the  fourteenth  section  of  the  will  is  valid.  That 
the  city  of  Denver,  in  its  corporate  capacity,  has  power  to  accept  the 


SCHNEIDER   V.   MENASHA.  .  413 

trust  created,  and  to  execute  it  in  accordance  with  the  intention  of  the 
testator  as  declared  in  the  fourteenth  section  of  his  will. 

For  the  reasons  given,  the  judgment  of  the  district  court  is  affirmed.^ 

AJi7"med. 


SCHNEIDER  v.  MENASHA. 

1903.     118  Wis.  298. 

Appeal  from  an  order  of  the  circuit  court  for  "Winnebago  county : 
Geo.  "VV.  Bcrnell,  Circuit  Judge.     Affirmed. 

Taxpayer's  action  to  restrain  defendant  city  and  its  officers  from 
consummating  a  contract  to  purchase  a  tract  of  land  just  outside  the 
corporate  limits  of  the  city,  from  which  to  obtain  stone  for  manufac- 
tnrihg' crushed  rock  for  city  purpose.  The  complaint  contained  all 
tFe~Tiecessary  allegations  to  raise  the  question  of  whether  the  city 
possessed  power  to  do  the  act  sought  to  be  prevented.  The  defendant 
city  answered  tliat  the  purpose  of  purchasing  the  land  was  to  obtain  a 
supply  of  crushed  rock  for  use  upon  the  city  streets,  and  that  such  land 
was  conveniently  located  for  such  purpose.  A  motion  for  a  prelim- 
inary injunction  was  denied,  and  plaintiff  appealed.^ 

•  •  •  ••  •  •• 

Marshall,  J.  Respondents  urge  in  support  of  the  order  appealed 
from  the  doctrine  that,  respecting  an  executed  contract,  only  the  state 
can  invoke  the  doctrine  of  ultra  vires  to  challenge  the  right  of  a  cor- 
poration to  exercise  power  beyond  the  scope  of  its  charter.  That 
doctrine  is  applied  quite  generally  to  private  corporations.  It  is  not, 
however,  to  public  corporations.  The  numerous  cases  decided  by  this 
court,  establishing  the  right  of  taxpayers  to  intervene  to  prevent  the 
unlawful  disposition  of  public  money  or  to  compel  its  restoration, 
clearly  indicates  that.  Webster  v.  Douglas  Co.,  102  Wis.  181,  77  N.  W- 
885,  78  N.  W.  451 ;  Northern  T.  Co.  v.  Snyder,  113  Wis.  516,  89  N.  W. 
460.  It  is  deemed  so  unsafe  to  allow  the  officers  of  a  municipality  to 
bind  it  beyond  the  scope  of  its  powers,  that  all  persons  are  held  firmly 
to  the  rule  that,  in  dealing  witn  such  a  corporation,  they  are  presumed 
to  know  the  limit  of  its  authority  and  act  at  their  pei'il.  The  result  is 
that  no  one  can  successfully  plead  ignorance  to  save  himself  from  loss 
in  dealing  with  a  municipality  as  to  matters  expressly  prohibited,  nor 
as  to  any  matter  bej'ond  the  scope  of  corporate  authority  except  in  case 
his  money  or  property  has  actually  been  used  for  legitimate  corporate 
purposes.  In  that  event,  on  equitable  grounds,  the  court  will  afford 
a  remedy  to  the  extent  of  the  corporate  benefit,  but  no  further. 
Thomson  v.  Elton,  109  Wis.  589,  85  N.  W.  425 ;  Beach,  Pub.  Corp. 
§219. 

^  See  Dailei/  v.  Xew  Haven,  60  Conn.  314. 
^Arguments  omitted.  —  Ed. 


414  SCHNEIDER   V.   MENASHA. 

Counsel  for  appellant  bring  to  our  attention  a  number  of  authorities 
to  sustain  the  contention  that  a  city  cannot  purchase  real  estate  outside 
of  its  corporate  limits,  but  none  that  seems  to  really  touch  the  precise 
question  here  presented,  which  is  this:  Can  a  city,  under  its  general 
power  to  "  purchase  and  hold  real  estate  sufficient  for  the  public  use, 
convenience  or  necessities"  (charter  of  Menasha, —  sec.  4,  subch. 
XV,  ch.  123,  Laws  of  1891),  purcliase  real  estate  outside  of  its  cor- 
porate limits  convenient  for  use  in  obtaining  a  supply  of  crushed  rock 
to  be  used  upon  the  city  streets? 

The  city  of  Menasha  had  express  authority  to  improve  its  streets. 
It  had  express  authority  to  purchase  such  real  estate  as  it  deemed 
reasonably  necessary  or  convenient  for  the  city's  use.  It  possessed, 
by  implication,  all  the  powers  reasonably  necessary  to  the  proper  ex- 
ercise of  such  express  powers,  and  those  essential  to  the  objects  and 
purpose  of  its  corporate  existence.  Trester  v.  Sheboyc/an,  87  Wis. 
496,  58  N.  W.  747.  The  acquirement  of  a  supply  of  crushed  rock  for 
use  upon  the  city  streets  was  a  legitimate  city  purpose.  That  is  con- 
ceded. It  must  be  conceded,  also,  that  to  obtain  such  supply  by  the 
purchase  of  real  estate  and  manufacturing  the  crushed  rock  therefrom 
within  the  city  limits  would  be  a  legitimate  exercise  of  corporate 
power.  Would  an  act  which  does  not  involve  the  exercise  of  sovereio-n 
authority, —  one  in  the  exercise  of  the  ordinary  business  functions  of  a 
city  inside  the  city  limits, —  cease  to  be  such  if  performed  just  over  the 
boundary  line  or  within  a  convenient  distance  from  the  city? 

The  language  of  the  charter  is  general  Looking  at  the  literal  sense 
thereof,  the  city  may  do  business  outside  its  boundaries  so  far  as  reason- 
ably necessary  to  carry  out  the  express  powers  granted  to  it,  as  well  as 
within.  It  is  admitted  that  a  city  may  own  realty  outside  its  limits  for 
purposes  which  are  essential  to  its  welfare,  as  for  a  cemetery  or  pest- 
house.  On  that  2  Dillon,  Man.  Corp.  (4th.  ed.)  §  56o,  is  cited.  Judge 
Dillon,  as  we  shall  see  later,  some  time  after  the  text  of  his  work  was 
written,  successfully  maintained  much  broader  authority  for  cities. 
Counsel  suggests  that  if  the  city  can  go  outside  its  boundaries  for  a  stone 
quarry  because  the  corporation  needs  crushed  rock  for  use  upon  its 
streets,  it  can  go  to  any  distance  therefor,  and  that  if  it  can  go  into 
the  rock  crushing  business,  it  can  also  go  into  the  business  of  building 
rock  crushers.  That  argument,  though  plausible,  lacks  the  merit  of 
novelty,  as  will  hereafter  be  seen.  As  an  authority  peculiarly  in 
point,  we  are  referred  to  Duncan  v.  Lynchburg,  34  S.  E.  964,  48  L.  R. 
A.  331,  decided  in  the  supreme  court  of  appeals  of  Virginia.  At  first 
glance  the  case  seems  to  strongly  support  counsel's  side  of  the  contro- 
versy, but  upon  a  careful  study  thereof  it  appears  that  the  powers  of 
the  charter  of  Lynchburg  were  much  less  liberal  than  those  of  the  re- 
spondent city.  Moreover,  we  find  that  the  authorities  cited  do  not 
support  the  extreme  views  of  the  Virginia  court.  The  Lynchburg 
charter  only  autliorized  the  purchase  of  property  necessary  for  city 
purposes.     The  charter  before  us  authorizes  the  purchase  of  property 


SCHNEIDER   V.    MENxVSIIA.  415 

necessary  or  convenient  for  such  purposes.  The  authorities  cited  by 
the  Virginia  court,  in  the  main,  bear  on  the  question  of  exercising 
governmental  powers  outside  the  city.  Those  that  touch  on  mere 
rights  of  ownership,  support  a  view  rather  contrary  to  the  decision  of 
the  court.  For  example,  Riley  v.  Rochester,  9  N.  Y.  64,  is  referred  to. 
The  learned  counsel  here  rely  upon  that  and  similar  cases.  The  New 
York  court  expressly  declined  to  hold  that  a  city  cannot  take  title  to 
realty  outside  its  limits  for  any  purpose.  It  held  that  it  cannot  do  so  for 
the  purpose  of  exercising  governmental  authority  over  the  same. 
Coldivater  v.  TncJcer,  36  Mich.  474,  was  cited  by  the  Virginia  court 
and  is  also  relied  upon  here.  That  holds  that  a  city  may  own  public 
works  outside  its  boundaries  by  implied  authority  under  some  circum- 
stances. 

The  rule  that  a  city  cannot  exercise  its  governmental  authority  out- 
side its  limits  has  nothing  to  do  with  the  case  in  hand.  This  court  held 
that  it  cannot  exercise  such  authority  in  Becker  v.  La  Crosse,  99  Wis. 
414,  75  N.  W.  84.  It  at  the  same  time  recognized  that  a  city  may  ex- 
ercise its  mere  right  to  own  and  use  property  for  legitimate  city  pur- 
poses outside  its  boundaries.  That  is  very  decisively  maintained  in  the 
following  cases,  which  seem  to  fully  cover  the  case  in  hand,  so  far  as 
decisions  in  another  jurisdiction  can  do  so :  People  ex  rel.  Murphy  v. 
Kelly,  76  N.  Y.  475  ;  Matter  of  Apjylication  of  Mayor,  etc.,  99  N.  Y. 
569,  2  :N.  E.  642  ;  Lester  v.  Jackson,  69  Miss.  887,  11  South.  114.  In 
the  second  case  cited  Judge  Dillon  appeared  for  the  city  of  New  York 
and  prevailed  in  the  contention  that  the  city  possessed  power  to  pur- 
chase land  outside  the  city  for  a  park.  It  was  suggested  to  the  court 
by  the  opposition,  as  an  indication  of  the  absurdity  of  that  doctrine, 
that  if  land  outside  a  city  can  be  held  for  a  park,  it  can  acquire  prop- 
erty regardless  of  distance ;  that  if  the  city  of  New  York  can 
purchase  land  three  miles  from  its  limits,  it  can  go  to  the  Falls  of 
Niagara  or  to  the  Adirondack  Mountains,  and  can  also  build  and  op- 
erate a  railroad  to  the  premises  acquired,  and  when  its  right  in  the 
matter  is  challenged,  defend  upon  the  plea  of  city  purpose  and  implied 
power  to  subserve  the  same.  That  argument  was  taken  seriously  by 
the  court  and  considered,  with  the  result,  based  upon  reason  and 
authority,  that  a  general  grant  of  power  as  regards  those  matters 
which  do  not  involve  governmental  functions,  cannot  be  fenced  about 
by  corporate  limits ;  that  what  constitutes  a  city  purpose  within  such 
limits  does  not  change  merely  by  passing  beyond  the  same.  This  lan- 
guage was  used : 

"The  truth  is  that  neither  in  authority,  nor  in  the  legislative  practice, 
nor  in  the  common  sense  of  the  question  is  there  any  basis  for  declar- 
ing that  there  can  be  no  true  and  sound  municipal  purpose  which 
reaches  beyond  the  corporate  lines." 

The  undoubted  right  to  purchase  a  water  supply  outside  the  city  was 
suggested,  and  the  instance  was  pointed  to  of  New  York  going  for  such 
purpose  to  a  distance  of  forty  miles  from  the  city  and  expending  millions 


416  SCHNEIDER   V.    MENASHA. 

of  dollars  in  that  regard.  After  disposing  of  the  primary  question  of 
whether  all  citj'  purposes  end  at  the  corporate  limits  going  outward, 
and  commence  at  such  limits  coming  inward,  the  court  took  up  the  idea 
of  distance  suggested  by  the  illustration  given  by  counsel,  and  held 
that  power  in  that  regard  is  limited  by  the  very  nature  of  it ;  that  so 
long  as,  considering  the  end  in  view,  the  range  of  reasonable  conven- 
ience and  adaption  to  the  exercise  of  the  express  power  is  not  over- 
stepped, municipal  authority  is  not  exceeded  ;  that  when  an  extreme 
action  shall  have  -been  taken,  so  as  to  impress  the  impartial  mind  of 
some  ulterior  purpose,  it  is  time  to  pause  if  not  to  turn  backward. 
That  doctrine  was  indorsed  in  Lester  v.  CUt/  of  Jackson,  supra,  which 
was  another  case  of  buying  land  beyond  the  city  limits  for  a  park. 
The  language  of  the  court,  in  substance,  was  this  :  A  municipal  cor- 
poration may  take  and  hold  laud  convenient  and  accessible  for  a  park, 
although  it  lies  outside  the  corporate  limits,  and  the  charter  confers  no 
express  authority  to  own  land  outside  ;  the  city  cannot  exercise  its  sov- 
ereignty over  it,  but  it  can  exercise  all  the  rights  and  powers  pertainiug 
to  ownership. 

It  would  not  be  profitable  to  examine  at  length  the  numerous  cases 
called  to  our  attention  by  appellant's  counsel  to  support  his  view.  It 
seems  sufficient  to  say  that,  in  the  main,  they  hold  that  municipal 
authority  in  a  governmental  sense  cannot  be  exercised  outside  the 
limits  of  the  municipality.  That  is  in  harmony  with  the  decision  of 
this  court,  as  we  have  seen.  It  is  also  in  harmony  with  the  view  that 
municipal  ownership  may  reach  beyond  corporate  limits,  as  held  in  tlie 
cases  to  which  we  have  referred.  When  one  draws  the  distinction  be- 
tween mere  right  to  own  property  for  city  purposes  and  the  right  to  ex- 
ercise sovereign  authority  over  property,  the  authorities  upon  which  this 
case  was  grounded  are  easily  seen  not  to  warrant  the  result  sought. 

In_tesjiug  the  question  of  whetheiv. a.  municipality  has  exc_ee(led  its 
corporate  authority  in  going  outside  its  boundaries  in  any  given  case^ 
we~rQust  first  determine  the  purpose  in  vievr.  If  that  be  fouiKl  to  li'e 
the^exercise  of  police  authority,  or  authoi-ity  to  govern  in  any  sense, 
the  conclusion  must  be  that  the  end  does  not  justify  the  act.  If  it  be_ 
Tound  to  be  the  mere  exercise  of  a  business  function,  the  conclusion 
must  be  that  the  mere  act  of  going  beyond  the  boundary  does  no£ 
necessarily  involve  excess  of  power.  In  determining  whether  corporate 
authority  has  been  exceeded  by  reason  of  distance  from  the  city  limits 
the  act  in  question  reaches,  we  must  solve  that  by  an  appeal  to  reason 
and  common  sense,  keeping  in  mind  that  municipal  corporations,  in 
their  business  matters,  are  governed  by  very  much  the  same  rules  as 
private  corporations.  Washburn  Co.  v.  Thompson,  99  "Wis.  585,  75 
N.  W.  309.  It  comes  down  in  each  case  to  the  exercise  of  mere  human 
judgment.  That  being  the  case,  there  must  necessarily  be  a  wide  range 
within  which  municipal  officers,  acting  in  good  faith,  may  go,  and  not 
be  guilty  of  such  an  abuse  of  power  as  to  render  their  acts,  as  acts  of 
the^city,  void.     As  suggested  in  the  New  York  case,  they  may  go  to 


BROOKS   V.   BUOOKLYN.  417 

the  point  where  to  go  further  would  indicate  some  ulterior  motive, — 
indicate  that  a  legitimate  city  purpose  was  no  longer  in  view.  That 
■would  be  true  whether  the  act  done  were  performed  within  or  without 
the  corporate  limits.  Manifestly,  in  purchasing  real  estate  for  the  con- 
venience of  a  city,  the  element  of  convenience  will  enter  into  the  matter, 
whether  the  purchase  be  made  on  one  side  or  the  other  of  the  boundary 
line  of  the  corporation.  If  the  agents  of  the  city  should  go  so  far 
from  its  boundary  to  obtain  land  for  its  use  that  the  element  of  conven- 
ience would  be  no  longer  apparent,  there  would  undoubtedly  be  such 
an  abuse  of  authority  as  to  render  the  act  void.  There  is  nothing 
of  the  kind  in  this  case.  It  is  not  questioned,  as  we  understand  it,  that 
municipal  authority  was  not  exceeded  if  power  existed  to  purchase 
land  for  the  purpose  of  obtaining  a  supply  of  crushed  rock  for  use  upon 
the  city  streets,  beyond  the  city  limits,  at  all.  It  follows,  therefore, 
that  the  order  appealed  from  must  be  affirmed. 
By  the  Court. —  Order  affirmed. 


BROOKS  V.  BROOKLYN. 
1910.     146  la.  136. 

Two  actions  brought  by  plaintiff,  one  to  annul  a  contract  entered 
into  between  defendant  town  and  J.  J.  and  Henrietta  Watkins  for  the 
purchase  of  a  lot  whereon  to  erect  a  city  building ;  to  cancel  the  deed 
therefor ;  to  compel  a  restitution  of  the  funds  paid  for  the  lot ;  and  to 
recover  judgment  therefor ;  and  the  other  to  annul  and  set  aside  cer- 
tain contracts  made  by  defendant  town  with  defendants  Coutts  and 
Ormiston  for  the  erection  of  an  alleged  city  building ;  to  enjoin  the 
erection  of  the  building ;  to  have  an  election  at  which  the  contract  for 
the  building  was  approved  by  the  electors  adjudged  illegal ;  and  for 
other  equitable  relief.  The  trial  court  dismissed  both  petitions,  and 
plaintiff  appeals.  The  cases  were  tried  together  in  the  lower  court 
and  are  submitted  here  as  one.  First  case  affirmed.  Second  reversed 
and  remanded. 

Deemer,  C.  J.  There  is  little  dispute  in  the  facts,  the  questions 
presented,  aside  from  one  to  be  hereafter  noted,  being  of  law.  The 
town  of  Brooklyn  is  duly  incorporated  and  has  a  population  of  about 
one  thousand  two  hundred.  Like  most  Iowa  towns  it  is  a  farming 
community,  and  aside  from  its  social  and  mercantile  affairs  its  interests 
are  largely  agricultural.  Prior  to  the  transactions  to  which  we  are  about 
to  refer,  it  had  no  city  hall,  no  fire  station,  no  theater,  no  opera  house, 
and  no  large  public  assembly  hall.  Some  of  its  public- spirited  citizens 
conceived  the  notion  that  all  these  things  might  be  joined  in  one  build- 
ing, and  that  a  lot  could  be  purchased  and  such  a  structure  erected 


418  BEOOKS   V.   BROOKLYN. 

through  a  tax  levy  upon  all  the  property  within  the  town.  This  propo- 
sition was  submitted  to  the  town  council,  and  the  plan  met  with  the 
approval  of  the  members  thereof.  Steps  were  ahnost  immediately 
taken  to  accomplish  the  wishes  of  the  authors  of  the  plan,  and  on 
July  3, 1908,  the  town  council  submitted  to  the  electors  at  a  special 
election  the  following  proposition:  "Shall  the  town  of  Brooklyn, 
Iowa,  build  a  new  town  hall  and  assembly  hall,  at  an  expense  of  not  to 
exceed  $8,000  in  addition  to  what  may  be  realized  from  the  old  build- 
ing ?"  By  a  vote  of  about  two  to  one,  this  proposition  was  carried. 
Almost  immediately  thereafter  the  council  began  negotiations  for  a  lot 
and  also  authorized  the  employment  of  an  architect  to  design  plans  for 
the  building.  Before  anything  was  done,  howevei',  and  on  September  4, 
1908,  the  city,  in  levying  the  improvement  taxes,  levied  a  three-mill 
tax  for  a  town  hall  sinking  fund,  which,  as  we  understand,  was  duly 
certified  to  the  proper  authorities.  On  October  6th  the  council  made 
a  conditional  contract  with  the  defendants,  Watkins,  for  the  purchase 
of  the  lot  in  question,  the  contract  to  be  void  if  both  it  and  the  propo- 
sition to  erect  a  town  building  were  not  approved  by  the  electors. 
However,  on  December  4th,  the  contract  was  resigned  and  reaffirmed 
without  conditions,  and  the  council  directed  the  immediate  consumma- 
tion of  the  contract  and  the  payment  of  the  consideration  out  of  the 
general  funds  of  the  town.  Without  a  vote  of  the  electors,  save  as 
heretofore  indicated,  the  purchase  price,  to  wit,  $1,160,  was  paid  out 
of  the  general  funds  and  deed  made  to  the  city.  On  the  4th  of  Decem- 
ber the  city  adopted  the  plans  for  the  new  building,  and  contracts 
Avere  immediately  entered  into  with  defendants  Coutts  &  Ormiston  for 
the  erection  of  a  building  according  to  these  plans.  At  a  special  elec- 
tion held  on  January  11,  1909,  the  contracts  so  entered  into  were 
submitted  to  the  electors ;  the  proposition  being  as  follows : 

Notice  to  Voters :  For  an  affimative  vote  on  any  question  submitted 
on  the  ballot  make  a  cross  (X)  mark  in  the  square  after  the  word 
"  Yes."  For  a  negative  vote  make  a  similar  mark  in  the  square  fol- 
lowing the  word  "No." 

Shall  the  following  public  measure  be  adopted,  to 
wit : 


Yes 


No 


Shall  the  contracts  approved  by  the  town  council  in  relation  to  the 
erection  of  a  town  hall  be  adopted,  as  follows :  [Here  is  set  out  the 
contract  with  R.  G.  Coutts,  and  immediately  thereunder  the  contract 
with  I.  J.  Ormiston.] 

The  contract  with  Coutts  was  for  the  erection  of  the  building,  and 
with  Ormiston  for  the  plumbing,  heating,  and  lighting  of  the  structure. 
But  one  proposition  was  submitted  —  that  is  to  say,  the  electors  had 
to  approve  both  or  neither.  The  vote  of  the  electors  was  in  the 
affirmative.  This  action  to  set  aside  the  various  deeds,  contracts, 
etc.,  was  commenced  originally  on  December  24,  1908,  and  on  Feb- 
ruary 15,  1909,  plaintiff  filed  an  amendment  to  the  petition  challenging 
the  validity  of  the  January  election.     The  nature  of  the  attack  uuon 


BKOOKS   V.    BROOKLYN.  419 

the  proceedings  is  so  well  stated  in  appellant's  brief  that  we  here  quote 
from  it  as  follows  : 

"  The  plaintiff,  appellant  herein,  by  these  actions,  seeks  to  have  the 
purchase  of  said  lot  set  aside,  on  the  ground  that  the  same  is  illegal 
and  void,  because  the  proposition  therefor  was  not  submitted  to  the 
voters  for  their  approval ;  and  he  asks  that  the  defendant  be  restrained 
from  erecting  the  proposed  building,  because  it  is  not  such  a  building 
as  the  town  has  the  power  to  erect,  it  not  being  designated  or  planned 
for  municipal  use  ;  and  he  further  asks  that  said  election  be  set  aside 
and  held  invalid,  for  the  reason  that  the  same  was  held  to  vote  upon 
illegal  propositions,  and  further,  that  the  voters  were  not  given  an 
opportunity  to  vote  for  or  against  each  of  the  contracts  submitted,  but 
were  compelled  to  vote  either  for  the  adoption  or  against  the  adoption 
of  both." 

As  to  the  building  itself,  we  quote  the  following  from  appellant's 
brief : 

"  The  building  as  thus  planned  and  approved  is  ninety  feet  in  length 
and  forty  feet  in  width.  It  has  a  floor  space,  excluding  boiler  rooms,  of 
almost  six  thousand  square  feet.  Of  this  space,  but  one  thousand  two 
hundred  square  feet  is  to  be  used  by  the  city  government  for  offices, 
fire  department,  etc.,  leaving  quite  four  thousand  square  feet  of  floor 
space  for  use  for  other  purposes.  The  plans,  as  a  whole,  show  that  the 
building  is  designed  for  an  opera  house,  it  being  provided  with  an  audito- 
rium capable  of  seating  four  hundred  or  five  hundred  people,  a  box 
office,  ticket  window,  stagC;  balcony,  dressing  rooms,  etc.  The  dressing 
rooms  are  marked  "  store  rooms"  on  the  plans,  and  have  a  floor  space 
of  about  one  thousand  square  feet,  and  are  additional  to  the  so-called 
fire  department  and  apparatus  rooms.  The  plans  show  that  these 
"store  rooms"  are  to  be  "  finished"  —  quite  an  unnecessary  expense 
if  they  are  to  be  used  solely  for  storage  purposes." 

Blue  prints,  showing  basement,  first  and  second  story  plans,  cross- 
sections,  elevations,  roof  plans,  etc.,  are  in  evidence  and  have  been 
certified  as  a  part  of  the  record. 

It  is  well  settled,  of  course,  that  a  municipal  corporation  has  such 
powers  and  such  only  as  are,  first,  expressly  granted,  or  second,  such 
as  are  fairly  or  necessarily  implied  from  those  granted,  or  third,  such  as 
are  essential  to  the  declared  objects  and  purposes  of  the  incorpora- 
tion. As  to  the  third,  it  is  not  enough  that  they  be  convenient;  it 
must  appear  that  they  are  indispensable.  In  case  of  doubt  the  exist- 
ence of  power  is  denied  by  the  courts.  Clark  v.  Des  Moines,  19  Iowa, 
199  ;  Logan  v.  Pyne,  43  Iowa,  524  ;  Becker  v.  Water  Works,  79  Iowa, 
419;  Brockman  v.  Cresiori)  79  Iowa,  587;  Heins  v.  Lincoln,  102 
Iowa,  69;  Cherokee  v.  Perkins,  118  Iowa,  405.  If  there  be  no  au- 
thority to  make  a  contract  under  these  rules,  any  attempt  to  do  so  is 
void.  3IcPherson  v.  Foster,  43  Iowa,  48  ;  Cedar  RajAcls  Water  Co. 
V.  Cedar  Rajnds,  118  Iowa,  234;    Weitz  v.  Lul.  Dist.,  79  Iowa,  423. 

Again,  if  the  project  is  merely  colorable  under  the  pretense  of  some 


420  BROOKS   V.    BROOKLYN. 

actual  authority,  but  intended  to  promote  some  private  or  unauthorized 
purpose,  courts  will  declare  it  illegal.  Strahan  v.  Malvern,  79  Iowa, 
454;  In  re  Attorney-Oeneral  w.  Euu  Claire,  37  Wis.  490;  In  re  City 
V.  McNab,  67  Ala.  588  (42  Am.  Rep.  118);  Coates  v.  Camphell,  37 
Mian.  498  (35  N.  W.  366);  Allen  v.  Jay,  60  Me.  124  (11  Am.  Rep. 
185)  ;  Mather  v.  City  of  Ottawa,  114  111.  659  (3  N.  E.  216)  ;  Nerlien 
V.  Brooten,  94  Minn.  361  (102  N.  W.  867) ;  Siigar  v.  Moiiroe,  108  La. 
677  (32  South.  961,  59  L.  R.  A.  723);  Dorton  v.  Hearti,  67  Mo.  301. 

The  rule  with  reference  to  public  building  has  thus  been  stated  : 

The  validity  of  appropriations  for  the  purpose  of  erecting  or  repair- 
ing public  buildings  is  sometimes  contested  in  the  courts  on  the  ground 
that  the  contemplated  accommodations  exceed  the  actual  needs  of  the 
corporation,  and  are  to  be  rented  in  part  to  private  individuals.  The 
distinction  drawn  in  the  authorities  is  this  :  If  the  primary  object  of  a 
public  expenditure  is  to  subserve  a  public  municipal  purpose,  the  ex- 
penditure is  legal  notwithstanding  it  also  involves  as  an  incident  an 
expense  which,  standing  alone,  would  not  be  lawful.  But  if  the  pri- 
mary object  is  to  promote  some  private  end,  the  expenditure  is  illegal 
even  though  it  may  incidentally  serve  some  public  purpose.  It  is 
proper  in  constructing  buildings  to  make  suitable  provision  for  pro- 
spective wants.  Proceedings  in  raising  and  expending  money  within 
the  limits  of  the  corporate  powers  in  these  particulars  will  not  be 
collaterally  impeached  and  held  void  because  in  the  opinion  of  a  court 
and  jury  a  less  sum  would  have  answered  the  immediate  necessities  of 
the  corporation  or  the  money  might  have  been  more  judiciously  and 
economically  expended.  Beach  on  Public  Corporations,  vol.  1,  sec- 
tion 646. 

In  Warden  v.  JVew  Bedford,  131  Mass.  24  (41  Am.  Rep.  185),  it  is 
said:  "The  city  could  not  erect  buildings  for  business  or  speculative 
purposes,  but  having  a  city  hall,  built  in  good  faith  and  used  for  muni- 
cipal purposes,  it  has  the  right  to  allow  it  to  be  used  incidentally  for 
other  purposes,  either  gratuitously  or  for  compensation.  Such  a  use  is 
within  its  legal  authority,  and  is  common  in  most  of  our  cities  and 
towns.     French  v.  Quincy,  3  Allen,  9." 

In  Bates  v.  Bassett,  60  Vt.  535  (15  Atl.  202,  1  L.  R.  A.  166),  it  is 
said : 

"  The  fitting  up  of  rooms  for  rent  was  an  expense  incidental  to  the 
building  of  the  town  hall.  The  town  has  no  right  as  a  primary  purpose 
to  erect  buildings  to  rent ;  but  if  in  the  erection  of  its  hall  for  its 
proper  municipal  uses  it  conceives  that  it  will  lighten  its  burdens  to 
rent  part  of  its  building,  whereby  an  income  is  gained,  no  sound  rea- 
son is  suggested  why  it  may  not  do  so.  The  true  distinction  drawn  in 
the  authorities  is  this:  If  the  primary  object  of  a  public  expenditure 
is  to  subserve  a  public  municipal  purpose,  the  expenditure  is  legal, 
notwithstanding  it  also  involves  as  an  incident  an  expense,  which, 
standing  alone,  would  not  be  lawful.  But  if  tbe  primary  object  is  not 
to  subserve  a  public  municipal  purpose,  but  to  promote  some  private 


BROOKS   V.   BROOKLYN.  421 

end,  the  expenditure  is  illegal,  even  though  it  may  incidentally  serve 
some  public  purpose.  This  is  the  test  where  good  faith  is  exercised  in 
making  the  expenditure.  If  a  public  purpose  is  set  up  as  a  mere 
pretext  to  conceal  a  private  purpose,  of  course  the  expenditure  is 
illegal  and  fraudulent.  There  is  nothing  in  this  case  that  invalidates 
the  action  of  the  town  in  building  its  new  town  hall.  Spaulding  v. 
Lowell,  23  Pick.  [Mass.]  71.  Having  elected  to  build,  the  town  had 
on  its  hands  an  old  building.  In  the  exercise  of  what  seemed  to  them 
to  be  a  wise  discretion,  the  voters  decided  to  repair  it  for  rental  pur- 
poses. This  is  said  to  be  illegal.  It  would  be  if  the  primary  object 
was  to  invest  money  in  a  building  to  rent.  The  town  could  not  pur- 
chase a  building  for  rental  purposes  solely.  But  here  the  town  abso- 
lutely owns  a  building  purchased  or  erected  for  its  proper  municipal 
purposes.  It  no  longer  has  use  for  it  for  municipal  purposes.  Must 
it  sacrifice  its  property,  or  may  it  not  do  with  it  what  a  prudent  man 
would  do  with  a  building?  ...  It  is  no  answer  to  say  that  the  town 
would  in  the  long  run  be  as  well  off  to  give  away  its  old  building.  The 
question  was  one  for  the  town  to  decide  for  itself,  and  its  decision 
made  in  good  faith  is  final." 

In  that  case,  in  repairing  an  old  town  building,  the  town  fitted  up 
and  rented  a  part  of  the  old  structure  for  an  opera  house. 

Kingman  v.  City,  153  Mass,  255  (26  N.  E.  998,  11  L.  R.  A.  123), 
decides  that  it  is  not  competent  for  a  city  to  appropriate  public  money 
for  the  erection  of  a  building  to  be  used  in  part  by  a  certain  Grand 
Army  post  during  its  existence  as  an  organization,  since  that  is  not  a 
public  purpose.     During  the  course  of  the  opinion  the  court  said  : 

"It  is  said  that  if  a  city  has  a  public  building  already  erected,  which 
is  larger  than  its  present  needs  for  municipal  purposes  require,  it  may 
allow  portions  of  such  building  to  be  used  for  other  purposes  for  the 
time  being,  either  for  a  stipulated  rent  or  price,  or  gratuitously ;  and, 
further,  that  in  erecting  a  public  building  a  city  need  not  limit  the  size 
of  it  to  actual  existing  needs,  but  may  make  a  reasonable  provision  for 
probable  future  wants.  All  this,  within  proper  limits,  is  true.  War- 
den V.  New  Bedford,  131  Mass.  23  (41  Am.  Rep.  185) ;  French  v. 
Qaincy,  3  Allen,  9  ;  Spaulding  v.  Lowell,  23  Pick.  71.  But  there  may 
be  some  danger  of  extending  this  doctrine  too  far.  Should  a  question 
arise  whether  a  contemplated  building  exceeded  what  was  allowable 
with  reference  to  legitimate  prospective  needs,  such  a  question  would 
have  to  be  determined  on  its  own  merits ;  and  the  good  faith  of  the 
transaction  and  the  soundness  of  the  judgment  shown  in  providing  for 
future  wants  might  have  to  be  considered.  No  such  question  has 
arisen  heretofore,  or  arises  now.  In  the  present  case  it  is  proposed  to 
erect  a  building  with  the  express  purpose  of  devoting  a  portion  of  it  to 
the  use  of  the  G.  A.  R.  post,  not  temporarily,  but  as  long  as  that 
organization  may  exist.  .  .  .  Without  now  considering  whether  in  any 
respect  this  statute  goes  too  far  or  is  liable  to  abuse,  it  is  sufficient  to 
say  that  it  refers  only  to  existing  public  buildings,  and  by  no  means 


422  BEOOKS   V.    BEOOKLYN. 

authorizes  the  erection  of  a  building  to  be  let  to  a  Grand  Army  post  at 
a  nominal  rent.  In  addition  to  Head  v.  Acton,  139  Mass.  341  (1  N.  E. 
413),  and  cases  there  cited,  the  following,  among  others,  may  also  be 
referred  to  as  tending  to  support  the  views  above  expressed,  in  respect 
to  the  proper  limits  of  the  right  of  taxation.  Jenkins  v.  Andover^  103 
Mass.  94." 

In  White  v.  Town  of  Stamford,  3'7  Conn.  586,  it  is  said  : 

'*  We  do  not  doubt  the  power  of  towns  to  build  town  halls  for  their 
public  meetings,  and,  if  the  building  is  solely  for  the  purposes  of  a 
hall,  the  town  within  reasonable  limits  must  judge  for  itself  of  the  size 
and  style  of  the  structure.  But  it  is  obvious  that  the  building  com- 
plained of  is  not  a  mere  town  hall.  It  indeed  contains  a  hall  in  its 
third  story,  but  the  other  stories  are  to  a  considerable  extent  to  be 
rented,  in  the  expectation  no  doubt  that  the  rents  will  ultimately  pay 
wholly  or  in  part  the  expenses  of  the  entire  structure.  Something  of 
the  same  kind  on  a  small  scale  has  sometimes  been  done  without  ob- 
jection in  the  towns  and  cities  of  the  State.  It  is  sometimes  inci- 
dental to  a  public  building  that  portions  of  it  are  not  needed  for  public 
purposes,  and  these  are  fitted  up  and  rented,  and  the  rents  applied 
toward  paying  the  expenses  of  the  building.  But  in  the  present  in- 
stance the  rents  are  more  than  incidental.  The  enterprise  evidently 
involves  extensive  arrangements  for  renting,  and  the  selectmen  of  the 
town,  or  a  committee  for  managing  the  premises,  will  have  the  control 
of  important  interests  which  seem  to  be  rather  private  than  public  in 
their  character  and  nature.  A  town  is  a  public  corporation,  not 
adapted  to  carry  on  trade  and  rent  property.  Its  citizens  are  mem-' 
bers  of  the  "corporation  not  by  choice,  but  by  compulsioa  of  law,  and 
ought  not  to  be  forced  into  a  partnership  in  carrying  on  business  for 
gain.  The  impolicy  of  entrusting  to  town  agents  the  management  "of 
private  business  is  very  obvious  ;  and  we  think  the  Legislature  has  not 
by  any  general  law  conferred  authority  upon  towns  to  erect  buildings 
for  rent,  and  also  are  of  opinion  that  the  resolution  of  1868  cannot  be 
construed  as  giving  authority  to  the  town  to  erect  such  a  structure  as 
is  being  built." 

These  authorities  seem  to  announce  the  law,  as  it  is  generally  ap- 
plied, in  this  country. 

Going  now  to  the  exact  questions  presented,  it  will  be  observed  that, 
■while  plaintiff  concedes  that  the  town  had  power  to  buy  the  lots,  it 
could  not  pay  for  the  same  out  of  the  general  funds  of  the  city,  and 
could  not  buy  without  submitting  the  contracts  to  the  electors  as  pro- 
vided in  sections  741j-741m  of  the  Code  Supplement  of  1907,  being  a 
reprint  of  chapter  28  of  the  Acts  of  the  Thirtieth  General  Assembly. 
The  council  evidently  began  its  efforts  to  procure  the  lots  and  build  the 
building  under  this  law ;  but  it  afterwards  abandoned  the  same  and 
purchased'  the  property  and  paid  for  it  out  of  the  general  funds. 
Aside  from  this  statute,  the  town  had  power  to  acquire  and  hold  real 
and  personal  property.    Code,  section  695.    To  purchase  the  necessary 


BKOOKS   V.    BROOKLYN.  423 

ground  and  construct  buildings  for  a  fire  department  and  fire  company. 
Code^  section  71G.  To  erect  a  city  jail.  Code,  section  735.  To  pur- 
chase and  pay  for  out  of  the  general  funds  any  lands  for  the  various 
purposes,  naming  them,  and  including  the  purposes  above  named,  and 
in  all  other  cases  where  such  purchase  is  or  may  hereafter  be  au- 
thorized. Code,  section  880.  Here  is  express  authority  to  purchase 
real  estate  for  the  purpose  of  erecting  a  building  for  the  fire  depart- 
ment or  fire  company  and  to  pay  for  the  same  out  of  the  general 
funds.  Chapter  28  of  the  Acts  of  the  Thirtieth  General  Assembly 
does  not  repeal  these  sections,  unless  by  implication,  and  as  such 
repeals  are  not  favored,  wg  must  hold  that  the  latter  Act  of  the  Legis- 
lature has  reference  to  cases  where  the  town  has  not  in  its  general 
funds  enough  to  pay  for  the  grounds  and  is  compelled  to  issue  its 
bonds  or  warrants  therefor  to  be  paid  at  a  future  date.  A  sinking 
fund  tax  is  a  tax  raised  to  be  applied  to  the  payment  of  the  principal 
and  interest  of  a  public  loan  or  obligation.  Union  Pacific  R.  B.  v. 
Torlc  Co.,  10  Neb.  612  (7  N.  W.  270);  Bank  v.  Grace,  102  N.  Y.  313 
(7  N.  E.  162)  ;  Brooke  v.  Cltij,  1G2  Pa.  123  (29  Atl.  387,  24  L.  R.  A. 
781).  This  construction  harmonizes  the  entire  law  and  was  manifestly 
the  one  intended  by  the  Legislature.  It  also  finds  support  in  In  re  Cedar 
Rapids,  85  Iowa,  39  ;  Dioer  v.  Savings  Bank,  126  Iowa.  691.  Enter- 
taining no  doubt  of  the  power  of  the  town  to  purchase  and  pay  for  the 
lot  in  question  out  of  its  general  fund,  the  decree  iu  the  first  case  must 
be  affirmed. 

II.  The  second  case  presents  two  questions :  The  first  being  the 
sufficiency  of  the  ballot ;  and  the  second,  the  nature  of  the  building 
which  the  town  proposed  to  erect.  Two  contracts  were  presented  to 
the  voters  for  approval ;  but  the  elector,  by  the  form  of  ballot  used, 
had  to  vote  for  or  against  both  contracts.  He  could  not  vote  for  one 
and  against  the  other,  save  as  he  by  reason  of  his  objection  to  one 
should  vote  against  both.  Did  this  invalidate  the  election?  Because 
but  one  object  was  sought,  viz.,  the  building  of  a  town  hall,  the  ques- 
tion under  the  rule  announced  in  Rock  v.  Rhinehart,  88  Iowa,  37, 
must  be  answered  in  the  negative.  If  the  voter  did  not  wish  to  have 
the  town  hall  erected,  he  would  vote  in  the  negative.  If  he  thought 
that  one  of  the  contracts  was  bad  he  would  also  vote  no  and  as  said  in 
Rock's  case,  "  A  careful  reading  of  the  ballot  under  consideration,  in 
the  light  of  facts  connected  with  the  election,  shows  marked  distinc- 
tion between  this  and  the  cases  cited.  There  is  but  one  object  —  the 
erection  of  a  courthouse  —  while  in  those  cases  there  were  two  or  more. 
Following  Graijy.  Mount,  supra  [45  Iowa,  591],  we  must  say  that, 
there  being  but  one  object,  there  was  but  one  proposition." 

Moreover,  section  741m  of  the  Code  Supplement  of  1907  gives  the 
form  of  the  ballot  as  follows:  "  Proposition  to  be  submitted  at  said 
election  and  the  form  of  ballot  shall  be :  Shall  the  contract  or  con- 
tracts approved  by  the  city  or  town  council  in  relation  to  the  purchase 
of  buildings  or  grounds  or  erection  of  buildings  be  adopted?     The 


424  JOHNSON   V.   BKOWN. 

proposition  shall  be  printed  and  placed  on  the  ballots  and  the  voter 
shall  designate  his  choice  and  the  election  shall  be  conducted  in  the 
manner  provided  in  the  chapter  on  elections."  Code  Supp.  1907, 
section  741  m.  Having  followed  the  language  of  the  statute  the  ballot 
should  be  approved. 

AYe  are  abidingly  satisfied  that  the  building,  as  planned,  is  not  such 
an  one  as  the  town  had  authority  to  build.  It  is  in  fact  an  opera  house 
with  all  the  necessary  equipment  for  such  a  building.  The  Jgwn,  offices 
and  the  place  for  the  fire  department  were  mere  incidents  to  the  build- 
ing. However  desirable  it  may  be  for  rural  towns  to  have  a  large 
assembly  hall  or  opera  house,  it  is  not  within  the  power  of  the  town 
council  to  build  it.  The  officials  are  not  ordinarily  selected  to  manage 
theaters  or  opera  houses,  and  in  view  of  the  fact  that  when  so  managed 
the  town  becomes  responsible  for  their  care  and  safety,  and  is  liable  to 
any  one  injured  by  or  through  the  neglect  of  any  of  the  officials  or  em- 
ployees of  the  city,  it  is  a  burden  which  should  not  be  assumed.  There 
was  no  need  for  such  a  building  for  municipal  purposes,  and  it  is  but 
a  thin  disguise  to  cover  a  purpose  not  authorized  by  law.  The  bur- 
dens of  taxation  are  heavy  enough  without  entering  upon  any  such 
hazardous  enterprises  as  are  here  proposed.  Our  form  of  city  govern- 
ment is  representative  in  character  and  is  in  no  sense  like  the  New 
England  town  meeting.  Where  that  system  of  government  obtains  a 
large  assembly  hall  is  no  doubt  necessary ;  but  there  is  no  occasion 
for  one  w^here  our  elections  are  by  ballot.  The  room  provided  in  this 
building  was  large  enough  for  a  county  courthouse,  and  we  find  noth- 
ing in  the  statutes  which  will  justify  such  a  building.  Moreover,  we 
are  satisfied  that  the  real  intent  was  to  avoid  the  statutes  to  which  we 
have  referred,  and  it  is  our  duty  to  prevent  any  such  evasions. 

It  follows  that  the  relief  asked  in  the  second  case  should  have  been 
granted.  The  decree  in  that  case  will  therefore  be  reversed,  and  the 
cause  remanded  for  a  decree  in  harmony  with  this  opinion.  Each 
party  will  pay  one-half  the  costs  of  the  appeal. 

First  case  affirmed  and  second  case  reversed  and  remanded.''- 


STATE  EX  KEL.  JOHNSON  v.  BROWN. 

1910.     Ill  Minn.  80. 

Jaggard,  J.  The  only  question  in  the  case  is  whether  or  not  the 
board  of  park  commissioners  of  the  city  of  Minneapolis  has  the  power 
to  erect  upon  park  property  a  dwelling  house,  which  is  to  be  used  by 
the  park  superintendent  and  his  family  as  a  residence,  and  as  an  office 
by  the  park  superintendent  and  his  associates.     The  relevant  provision 

1  See  Denver  v.  Hallett,  34  Col.  393. 


JOHNSON   V.    BROWN.  425 

of  the  city  charter  is  section  2  of  the  park  board  act  approved  March 
11,  1909.     It  is  as  follows: 

"  The  board  of  park  commissioners  of  the  city  of  Minneapolis  and 
its  successors  shall  have  the  power,  and  it  shall  be  its  duty,  to  devise, 
adopt  and  maintain  parks  and  parkways  in  and  adjacent  to  the  city  of 
Minneapolis,  and  from  time  to  time  to  add  thereto ;  to  designate 
lands  and  grounds  to  be  used  and  appropriated  for  such  purposes ;  to 
cause  the  same  to  be  platted,  surveyed,  and  plats  thereof  filed  in  the 
office  of  the  secretary  of  said  board,  and  in  the  office  of  the  city  engi- 
neer of  the  city  of  Minneapolis,  and  the  right  to  take  possession,  upon 
obtaining  title  to  the  same  or  any  part  thereof;  to  hold,  improve,  gov- 
ern and  administer  the  same  for  such  purposes."     (The  italics  are  ours.) 

It  is  to  be  noted  that  this  is  a  statement  of  general  powers,  and  not 
an  enumeration  of  particular  powers,  which  would  naturally  exclude 
others  not  set  forth.  The  board,  therefore,  had  these  general  powers 
and  such  powers  as  would  be  reasonably  implied  therefrom.  It  is  evi- 
dent that  on  an  extremely  liberal  construction  of  these  powers  the  erec- 
tion of  the  proposed  building  would  be  unquestionably  justified.  On 
an  extremely  strict  and  literal  construction  it  may  not  be  impossible 
that  such  erection  would  not  have  been  authorized.  But  on  a  reason- 
ably strict  construction  we  think  that  the  park  board  had  the  power  to 
contract  for  the  erection  of  such  a  building,  and  that  the  city  comp- 
troller of  the  city  of  Minneapolis  should  have  countersigned  the  con- 
tract as  provided  by  chapter  374,  Laws  1909  (R.  L.  Supp.  1909, 
§§  765—29  to  765—31). 

It  is  clearly  within  the  implied  powers  of  the  park  board  to  erect  on 
its  property  pavilions,  boathouses,  workshops,  stables,  greenhouses, 
storehouses,  an  administrative  building,  and  the  like.  It  is  within  the 
discretion  of  the  board  whether  it  should  combine  with  the  administra- 
tive building  a  superintendent's  residence.  Usually  parks  are  situated 
at  some  distance  from  the  city.  It  may,  then,  be  necessary  to  provide 
the  superintendent  with  a  residence  within  the  limits  of  the  park.  Even 
if  such  a  residence  be  not  absolutely  necessary  under  the  circumstances 
here  presented,  it  is  very  reasonable  that  he  should  be  on  the  ground, 
where  he  can  see  to  it  that  park  property  is  properly  used  for  park 
purposes.  His  residence  there  would  naturally  conduce  to  conserve 
the  improvements  on  the  premises,  to  the  proper  government  of  the 
park,  and  to  the  proper  administration  of  the  trust.  As  a  result  there 
would  constantly  be  some  one  in  authority  always  accessible,  and  all 
matters  properly  related  to  disciplinary  and  administrative  affairs  could 
be  attended  to  as  promptly  as  possible.  The  proposed  building  may 
fairly  have  been  regarded  as  practically  necessary. 

It  is,  however,  urged  upon  us  that  a  city  engineer,  or  an  engineer  of 
city  sewers,  supervises  and  controls  a  much  larger  mileage  of  streets 
than  the  park  board  of  parkways,  and  that  these  departments  are  com- 
pelled to  keep  track  of  as  many  or  more  tools.  Why,  it  is  naturally 
asked,  should  not  the  city  provide  a  residence  for  such  an  officer,  or 


426  JOHNSON   V.   BKOWN. 

for  the  chief  of  police  ?  This  question  is  not  before  us,  and  it  would 
be  entirely  improper  to  undertalve  to  here  decide  what  the  city  might 
not  legally  do  under  such  circumstances.  The  functions  and  the  jui'is- 
dictions  of  the  various  officers  are  so  obviously  different  that  the  reas- 
oning on  their  respective  powers  has  not  much  cogency.  But  if  a 
county  can  properly  provide  a  residence  for  a  sheriff,  why  not  a  city 
for  its  chief  of  police?  _It  is  common  in  all  charitable  and  penal  insti- 
tutions for  the  superintendent  to  reside  on  the  premises.  It  is  true  that 
in  many  cases  special  statutory  or  charter  provisions  justify  the  furnish- 
ing of  such  residences.  Often,  however,  the  provision  is  substantially 
the  same  as  the  provision  at  bar.  The  fact  is  significant,  however, 
and  indicative  of  a  true  public  policy. 

The  question  is  one  of  reasonable  discretion  on  the  part  of  the  park 
board.  Its  conclusions  must  be  sustained,  unless  they  appear  to  be 
arbitrary,  or  the  result  of  fraud  or  demonstrable  mistake  of  fact.  See 
Diamond  v.  Citi/  of  Mankato,  89  Minn.  48,  93  N.  W.  911,  CI  L.  R.  A. 
448  ;  Le  Feber  v.  West  AlUs,  119  Wis.  608,  613,  97  N.  W.  203,  100 
Am.  St.  917  ;  State  v.  State  Medical  Examining  JBoard,  32  Minn,  l^^, 
20  N.  W.  238,  50  Am.  Eep.  575  ;  State  v.  Poivers,  69  Minn.  429,  72 
N.  W.  705  ;  State  v.  Teal,  72  Minn.  37,  74  N.  W.  1024  ;  State  v.  Cope- 
land,  74  Minn.  371,  77  N.  W.  231.  We  find  nothing  to  disturb  this 
conclusion  in  the  cases  to  which  respondent  refers  us.  BorougJi  of  Hen- 
dersony.  County  of  Sibley,  28  Minn.  519,  11  N.  W.  91  ;  Bates  v.  Bas- 
sett,  60  Vt.  530,  15  Atl.  200,  1  L.  R.  A.  166 ;  SpaukUng  v.  C^7y,  23 
Pick.  71,  80;  Sherlock  v.  Village,  68  111.  530. 

Heversed. 

Brown,  J.   (dissenting). 

I  dissent.  Whether  the  cities  and  villages  of  the  state  should  be 
clothed  with  the  power  and  authority  to  construct  dwellino;.hOiise,s  for 
their  oflficers  and  servants  at  the  expense  of  the  taxpayer  is  a  questioja 
for  the  legislature  to  determine,  and  in  language  too  clear  to  admit  of 
doubt,  and  not  by  the  court  through  a  forced  construction  of  their  ex- 
press charter  powers.  In  this  case  it  is  not  claimed  that  any  such 
authority  has  ever  been  expressly  conferred  upon  the  city  of  Minnea- 
polis, but  my  brethren  do  insist  that  it  arises  by  implication  and  as  an 
incident  to  the  express  power  to  purchase,  hold,  and  manage  public 
pai'ks,  under  which  it  is  held  that  a  dwelling  for  the  use  and  occupancy 
by  the  superintendent  of  parks  may  be  constructed  at  public  expense. 
I  am  unable  to  concur  in  the  proposition  that  such  power  exists  by  im- 
plication. 

Charter  powers  of  municipal  corporations  are  strictly  construed,  and 
the  rule  of  strict  construction  is  no  better  illustrated  than  by  our  own 
decisions.  State  y.  Bruckhanscr,  26  Minn.  301,  3  N.  W.  695;  Statex. 
Hammond,  40  Minn.  43,  41  N.  W.  243 ;  City  of  St.  Paul  v.  Stoltz,  33 
Minn.  233,  22  N.  W.  634 ;  City  of  Red  Wing  v.  Chicago,  M.  &  St.  P. 
By.  Co.,  72  Minn.  240,  75  N.  W.  223,  71  Am.  St.  482.  The  implied 
powers  of  a  municipal  corporation  are  those,  and  those  only,  which  are 


DETROIT   V.   DETROIT    CITIZENS'    STREET   RAILWAY.  427 

Ilecessa^^  not  merely  convenient  or  proper,  to  enable  the  corporation 
to  exercise  either  its  inherent  or  express  powers.  The  whole  law  on 
this  subject  is  correctly  summed  up  by  Chief  Justice  Baldwin  iu  the 
case  of  Crofut  v.  City,  65  Conn.  294,  32  Atl.  305,  as  follows : 

"The  powers  expressly  granted  to  a  municipal  corporation  carry 
with  them  such  other  powers  as  are  necessaril}'  implied  in  or  incidental 
to  such  grants.  And  it  also  possesses  all  powers  which  are  indispen- 
sable to  the  attainment  and  maintenance  of  its  disclosed  objects  and 
purposes.  Municipal  corporations  are  more  strictly  limited  in  these 
respects  than  private  corporations.  The  test  of  their  right  hy  implica- 
tion to  exercise  any  ijarticulwr 2')oicer  is  the  necessity  of  such  power, 
not  its  convenience.  If  there  be  reasonable  doubt  as  to  its  existence 
it  does  not  exist."  See  also  Von  Schmidt  v.  Widber,  105  Cal.  151, 
38  Pac.  682 ;  28  Cyc.  262. 

In  my  judgment  the  construction  of  a  private  dwelling  for  the  super- 
intendent thereof  is  not  necessary  to  the  exercise  of  the  power  to  own, 
hold,  and  manage  a  public  park. 

I  therefore  respectfully  dissent. 


DETROIT  V.  DETROIT  CITIZENS'  STREET  RAILWAY. 

1902.     184  U.  S.  368. 

The  bill  in  this  suit  was  filed  by  the  railway  company  tpr  the  pur- 
pose of  obtaining  an  injunction  to  restrain  the  city  of  Detroit  and  the 
individual  defendants  from  enforcing  certain  ordinances  of  the  common 
council  of  the  city,  adopted  in  1899,  reducing  the  rates  of  fare  on  the 
various  city  railways  of  the  complainant  and  providing  for  transfers 
of  passengers  from  one  route  to  another  on  payment  of  one  fare  of  five 
cents,  on  the  ground  that  such  ordinances  were  violations  of  the  Fed- 
eral Constitution,  because  they  impaired  the  obligation  of  contracts 
theretofore  entered  into  between  the  city  and  the  various  predecessors 
of  the  complainant.  The  Circuit  Court  granted  a  decree  perpetually 
enjoining  the  defendants  as  prayed  for,  and  they  have  appealed  there- 
from to  this  court.i 

Peckham,  J.  .  .  .  In  furtherance  of  the  claim  b}'  defendants  that  the 
ordinances  of  1899  reducing  the  rates  of  fare  are  valid,  it  is  urged  that 
express  authority  from  the  legislature  is  required  to  enable  the  common 
council  of  a  city  to  pass  ordinances  such  as  those  described  in  this  case, 
providing  for  the  consent  of  the  city  to  the  laying  of  tracks  and  the 
running  and  operation  of  a  railroad  through  its  streets  and  the  fixing 
of  rates  of  fare,  and  that  no  such  power  was  granted  in  this  case, 
and  if  there  were,  there  has  been  no  agreement  made  by  the  passage  of 

^  Statement  of  facts  omitted.     Part  of  opinion  only  given.  —  Ed. 


428  HATFIELD   V.   STKAUS. 

the  ordinances  referred  to  in  the  statement  of  facts.  It  may  be  con- 
ceded that  clear  authority  from  the  legislature  is  needed  to  enable  the 
city  to  make  a  contract  or  agreement  like  the  ordinances  in  question,  in- 
cluding rates  of  fare.  But  there  can  be  no  question  in  this  court  as  to 
the  competency  of  a  state  legislature,  unless  prohibited  by  constitutional 
provisions,  to  authorize  a  municipal  corporation  to  contract  with  a  street 
railway  company  as  to  the  rates  of.  fare,  and  so  to  bind  during  the 
specified  period  any  future  common  council  from  altering  or  in  any 
way  interfering  with  such  contract.  New  Orleans  Gas  Company  v. 
Louisiana  Light  Co7npany,  115  U.S.  650;  New  Orleans  Wateiioorks 
Company  V.  Rivers,  115  U.  S.  674;  St.  Tammany  Waterworks  v.  Neio 
Orleans  Waterworks,  120  U-  S.  64;  Walla  Walla  City  v.  Walla  Walla 
Water  Company,  172  U.  S.  1,  9;  Los  Angeles  v.  Los  Angeles  City 
Water  Company,  111  U.  S.  558,  570;  Freeport  Water  Company  v. 
Freeport  City,  180  U.  S.  587,  593.  The  contract  once  having  been 
made,  the  power  of  the  city  over  the  subject,  so  far  as  altering  the* 
rates  of  fare  or  other  matters  properly  involved  in  and  being  a  part  of 
the  contract,  is  suspended  for  the  period  of  the  running  of  the  cqa,- 
tract. 


HATFIELD  v.  STRAUS. 

1907.     189  N.  Y.  208. 

O  'Brien,  J.^  The  pi  an  tiffs  in  this  action  as  property  owners  seek  to 
restrain  the  defendants  from  carrying  into  effect  a  resolution  of  the 
board  of  estimate  and  apportionment  of  the  city  of  New  York  which 
authorizes  or  purports  to  authorize  certain  of  the  defendants  to  lay 
down  and  construct  a  spur  railroad  track  in  front  of  their  premises. 

The  plaintiffs  are  residents  and  property  owners  in  the  city  of  New 
York.  They  own  and  occupy  the  house  and  lot  at  No.  149  West  Thirty- 
fourth  street  as  a  private  residence,  having  resided  there  for  many 
years.  The  defendants  Isidor  and  Nathan  Straus  compose  the  firm  of 
R.  H.  Macy  &  Company,  and  that  firm  occupies,  as  lessees,  the 
premises  on  the  northwest  corner  of  Sixth  avenue  and  Thirty-fourth 
street,  eastward  of  and  immediately  adjoining  the  plaintiffs'  property, 
as  a  large  department  store.  The  other  defendants  are  the  city  of  New 
York  and  certain  of  its  municipal  officers  having  control  of  the  streets, 
or  whose  official  action  in  some  form  is  necessary  in  order  to  carry  out 
the  purposes  of  the  resolution.  The  immediate  purpose  of  the  action 
was  to  restrain  the  defendants  from  obstructing  the  street  near  the 
plaintiffs'  residence  by  carrying  into  effect  the  permit,  consent  or  ordi- 
nance of  the  board  of  estimate  and  apportionment,  which,  it  is  claimed, 
permitted  the  proprietors  of  the  department  store  to  lay  down  railroad 
tracks  and  operate  express  cars  thereupon  for  the  conveyance  of  goods 

1  Argument  and  part  of  each  opinion  omitted  —  Ed. 


HATFIELD   V.   STKAUS.  429 

to  their  store  from  the  street  railroad  in  Thirty-fourth  street.     The  only 
relief  demanded  in  the  complaint  was  a  pernetual  injunction. 

•  ••••  •  •> 

The  fundamental  and  important  question  in  the  case  is  with  respect 
to  the  validity  of  the  ordinance  expressing  the  consent  of  the  city, 
through  its  municipal  authorities,  for  the  use  of  the  street  in  the  manner 
described  and  specified  therein.  There  can  be  no  doubt  that  the  board 
of  estimate  and  apportionment  possessed  all  the  powers  concerning 
the  use  of  the  streets  by  the  public  and  by  private  parties  that  were 
formerly  possessed  by  the  board  of  aldermen.  Wilcox  v.  McClellan, 
185  N.  Y.  9,  17.  There  can  be  no  doubt  that  municipal  authorities 
having  the  care  and  control  of  the  streets  in  a  city  may  authorize  their 
temporary  use  by  private  parties  for  private  purposes  to  a  limited  ex- 
tent. The  precise  limits  beyond  which  that  power  cannot  be  exercised 
have  not  been  very  specifically  or  accurately  defined  and  perhaps  can- 
nat  be.  The  governing  body  in  a  city  may  permit  private  parties  to 
deposit  building  materials  in  the  streets,  to  construct  and  use  coal 
holes,  cellarways,  areas,  vaults  under  the  sidewalks,  awnings  above 
and  the  like.  But  all  these  and  all  similar  uses  of  the  public  streets 
for  private  use  are  either  expressly  authorized  by  statute  or  sanctioned 
by  the  courts  as  being  exceptions  to  the  general  rule,  borne  of  neces- 
sity and  justified  by  public  convenience  and  custom.  The  right  to 
such  use  is  given  to  the  general  public  and  enjoyed  by  all  citizens  alike. 
In  the  present  case  the  privilege  has  been  granted  to  private  parties 
and  is  special  and  peculiar.  Callanan  v.  Gilman,  107  N.  Y.  360;  Iloe^j 
v.  Gilroy,  129  N.  Y.  132;  Jorgensen  v.  Squires,  144  N.  Y.  280. 

These  cases,  however,  affect  only  in  a  very  slight  way  the  general 
rule  that  the  primary  purpose  of  streets  and  highways  is  the  use  of  the 
public  for  traveling  and  transportation,  and  that  any  encroachment 
thereupon  which  interferes  with  such  use  is  a  public  nuisance.  There 
can  be  no  doubt  that  an  abutting  owner  in  a  city  has  the  right  of  free 
access  to  and  from  his  property  in  the  usual  way.  He  may  use  for 
that  purpose  such  means  of  conveyance  for  the  transportation  and  de- 
livery of  goods  and  merchandise  as  are  usual  and  customary,  but  the 
right  of  ingress  and  egress  with  railroad  cars  running  upon  railroad 
tracks  has  not  yet,  I  think,  been  sanctioned  by  custom  or  by  law.  The 
claim  of  a  right  in  that  regard  is  far  in  advance  of  any  use  of  the  public 
streets  that  has  heretofore  been  recognized.  It  may  be  argued  that  if 
the  abutting  owner  may  use  carriages,  wagons,  trucks  and  even  motor 
cars  for  the  purpose  of  free  access  and  the  transaction  of  his  business, 
why  not  permit  him  to  use  railroad  cars  upon  a  railroad  track?  Such 
an  argument  is  misleading,  since  if  carried  to  its  logical  conclusion  the 
result  would  be  that  the  governing  body  in  a  city  would  have  the  power 
to  surrender  the  use  of  the  streets  to  private  parties  for  exclusively 
private  purposes.  The  courts  must  draw  the  line  at  some  point  beyond 
which  private  interest  and  convenience  must  yield  to  the  general  pub- 
lic good.     The  general  current  of  authorities  on  the  question  concerning 


430  HATFIELD   V.   STRAUS. 

the  use  of  public  streets  iu  cities  indicates  quite  clearly  that  the  line  has 
been  extended  and  the  domain  of  discretionary  power  very  much  ex- 
panded by  the  ordinance  adopted  in  this  case.  If  we  are  prepared  to 
hold  that  the  defendants  are  empowered  to  adopt  and  carry  out  the  res- 
olution in  question,  then,  as  was  suggested  in  the  learned  opinion  of 
the  court  below,  the  same  claim  of  right  must  be  sanctioned  when  like 
privileges  are  granted  to  all  merchants  in  the  city  who  are  similarly 
situated.  In  this  view  the  result  of  our  decision  in  this  case  must  be 
important  and  far-reaching  to  the  whole  community.  We  are  not  con- 
cerned with  the  question  whether  the  exercise  of  the  power  embodied 
in  the  resolution  was  necessary  or  reasonable.  The  defendants  do  not 
attempt  to  justify  the  grant  upon  any  such  ground,  and  these  consider- 
ations are  not  pertinent  to  the  questions  certified  to  us  by  the  learned 
court  below,  and  which  confer  upon  this  court  the  only  jurisdiction  it 
has  over  the  case. 

Keeping  in  view  the  fact  that  the  questions  certified  to  this  court  call 
simply  for  the  construction  of  a  specified  section  of  the  city  charter,  it 
is  not  necessary  to  call  attention  to  the  numerous  authorities  in  this 
State  that  deal  with  the  general  question,  concerning  the  power  of  the 
city  authorities  having  control  of  the  streets,  to  authorize  obstructions 
to  be  placed  therein  for  the  benefit  or  convenience  of  private  parties. 
It  is  quite  sufficient  to  observe  that  the  authorities  already  cited  in  sup- 
port of  the  right  of  the  plaintiffs  to  maintain  this  action  also  deal  with 
the  question  of  power  in  the  local  government  to  authorize  interfei'ence 
with  a  street  by  individuals  or  corporations  for  their  own  use  and  benefit. 
The  general  question  as  to  the  power  of  local  authorities  to  permit  such 
obstructions  has  been  dealt  with  and  discussed  in  the  courts  of  other 
states  in  a  very  broad  and  comprehensive  manner.  In  those  cases  the 
court  was  not  limited,  as  this  court  is,  to  the  mere  question  concerning 
the  meaning  and  construction  of  a  section  of  the  city  charter  or  other 
statute.  On  the  contrary,  the  discussions  in  these  courts  took  a  very 
wide  range,  and  the  results  announced  denote  the  general  trend  of 
judicial  authority  against  the  power  of  municipal  authorities  to  permit 
obstructions  of  the  character  involved  in  this  case  to  be  placed  in  the 
public  streets  of  cities.  Glaessner  v.  Anheuser  Busch  B.  Assn.,  100  Mo. 
508  ;  Gustafson  v.  Hamm,  56  Minn.  334;  Heath  v.  Des  Moines  &  S.  L. 
By.  Co.,  61  la.  11 ;  State  v.  Trenton,  36  N.  J.  Law,  79;  Mikesell  v. 
Durkee,  34  Kan.  509  ;  Mayor  v.  Harris,  73  Ga.  428. 

A  single  extract  from  one  of  these  cases  will  suflficiently  disclose  the 
views  of  the  court  in  all  of  them  :  "  Everything  which  is  fairly  within 
the  idea  of  regulating  streets,  with  a  view  to  their  use  as  streets,  may 
be  done  by  corporate  legislation.  In  measuring  the  extent  of  the 
power,  the  object  and  purpose  for  which  it  was  given  must  always  be 
regarded  as  the  test.  Is  one  of  those  objects  or  purposes  subserved 
by  permitting  one  individual  to  enjoy  a  use  of  the  highway  which  is  de- 
nied to  all  others  ?  I  think  not.  If  such  power  is  conceded,  its  exer- 
cise is  limited  only  by  the  discretion  of  the  common  council,  who  must 


HATFIELD   V.    STRAUS.  431 

be  the  sole  judges  of  the  extent  to  which  obstructions  may  be  placed 
in  the  streets.  If  they  can  license  one  to  build  a  railroad  across  the 
highway  for  his  own  exclusive  benefit,  of  which  the  public  can  have  no 
user  or  advantage  of  convenience,  it  is  difficult  to  perceive  why  they 
cannot  empower  another  to  place  therein  a  structure  which  would  more 
effectually  impede  the  public  passage  and  maintain  it  there  during  their 
pleasure.  How  considerable  must  the  obstruction  to  the  way  become, 
before  the  judgment  of  the  common  council  can  be  controverted,  and 
the  judicial  arm  interpose?  A  grant  to  every  one  on  the  street  of  a 
like  nature  with  that  now  resisted  would  render  the  highway  well  nigh 
impassable.  The  right  to  license  one  necessarily  implies  authority  to 
license  all,  and  thus  municipal  corporations  under  the  general  power 
to  regulate  streets  become  the  source  from  which  franchises  to  favored 
individuals  in  the  public  ways  derive  their  existence.  Streets  and  high- 
ways are  intended  for  the  common  and  equal  use  of  all  citizens,  to 
which  end  they  must  be  regulated.  An  appropriation  of  them  to  pri- 
vate  individual  use  from  which  the  public  derive  no  convenience,  benefit 
or  accommodation  is  not  a  regulation  but  a  perversion  of  them  from_ 
their  lawful  purposes  and  cannot  be  regarded  as  an  execution  of  the 
trust  imposed  in  the  city  authorities.  .  .  .  The  power  of  the 
common  council  to  permit  owners  of  stores  or  other  buildings  to  erect 
awnings  over  streets,  or  to  leave  boxes  on  the  sidewalks,  under  certain 
regulations  rest  upon  a  different  principle  and  has  been  sanctioned  by 
usage  as  the  exercise  of  a  right  in  the  owner  of  the  fee,  not  inconsistent 
with  the  public  right  of  passage.     State  v.  Trenton,  supra. 

The  order  appealed  from  should  be  affirmed,  with  costs,  and  the 
first  question  answered  in  the  negative  and  the  second  question  answered 
in  the  affirmative. 

Chase,  J.  (dissenting)  .  .  .  The  general  rule  that  streets  and  highways 
are  solely  for  passage  by  the  public  is  subject  to  some  exceptions  born 
of  necessity  and  public  convenience.  The  primary  purpose  of  streets 
and  highways  is  for  use.  If  a  physical  or  other  barrier  should  be 
erected  on  ail  lot  lines  adjoining  streets  and  highways,  such  streets  and 
highways  would  become  wholly  useless.  There  is  no  prohibition  against 
an  owner  of  lands  abutting  a  highway  from  passing  to  and  from  the 
same.  Such  right  of  passage  is  not  confined  to  the  owner  of  the  abut- 
ting lands,  but  extends  to  all  persons  lawfully  desiring  to  pass  to  and 
from  such  abutting  lands  and  also  to  the  transportation  of  all  goods, 
wares  and  merchandise  in  any  way  lawfully  used  in  connection  therewith. 
An  owner  of  a  building  abutting  on  a  street  may  not  only  freely  pass  to 
and  from  the  same  but  incident  to  his  ownership  he  may  use  the  street 
and  sidewalk  in  front  of  his  property  as  a  place  to  load  and  unload  his 
goods  and  for  all  usual  and  necessary  purposes  of  his  business  although 
it  may  occasion  a  temporary  obstruction,  provided  he  does  not  interfere 
unreasonably  with  the  public  right.  Jorgensen  v.  Squires,  144  N.  Y. 
280;  WeUhx.  Wilson,  101  N.  Y.  254  ;  Calkmanv.  Oilman,  107  N.  Y.  360. 

It  is  competent  for  the  legislature  to  authorize  abutting  owners  to 


432  HATFIELD    V.    STRAUS. 

temporarily  deposit  building  material  iu  the  streets,  Callanan  v. 
Gilman,  supra;  also  to  authorize  abutting  owners  to  build  within  the 
street  lines  underground  vaults,  Deshong  v.  City  o/Neiv  York,  176  N,  Y. 
475,  ai"ea  ways,  Devine  v.  Natio?ial  Wall  Paper  Company,  95  App. 
Div.  194;  affd.,  182  N.  Y.  565,  stepping  stones,  Wolff  y.  District  of 
Columbia,  196  U.  S.  152;  Robert  v.  Powell,  168  N.  Y.  411,  and  many 
other  things  which  tend  to  the  convenient  and  beneficial  enjoyment  of 
abutting  property.     Jorgensen  v.  Squires,  supra. 

In  the  Robert  v.  Powell  case  this  court  say  :  "  There  are  some  objects 
which  may  be  placed  in  or  exist  iu  a  public  street  such  as  water  hy- 
drants, hitching  posts,  telegraph  poles,  awning  posts  or  stepping  stones 
such  as  tlie  one  described  in  this  case,  which  cannot  be  held  to  con- 
stitute a  nuisance.  They  are  in  some  respects  incidental  to  the  proper 
use  of  the  street  as  a  public  highway.  The  hitching  post  for  instance, 
in  front  of  a  private  residence  is  intended  not  only  for  the  convenience 
of  the  private  individual  but  for  the  safety  of  the  public  as  well,  since 
it  is  intended  to  guard  against  accidents  resulting  from  runaway  teams 
or  horses.  It  is  quite  conceivable  that  a  shade  tree  located  within  the 
boundaries  of  the  street  or  highway  may  cause  an  accident  or  injury  to 
a  private  individual  using  the  street.  But  it  does  not  follow  that  it 
constitutes  a  public  nuisance  in  the  highway.  .  .  .  While  it  is  said 
that  these  cases  involved  only  the  question  of  liability  on  the  part  of  a 
municipality  for  negligence,  they  also  decided  that  the  existence  of 
objects  of  this  character  in  the  streets  is  lawful." 

This  court  in  Jorgensen  v.  Squires,  siipra,  say :  "  While  such  uses 
may  restrict  somewhat  the  free  and  unembarrassed  use  of  the  streets 
for  pedestrians,  the  general  interests  are  subserved  by  making  avail- 
able to  the  greatest  extent  valuable  property,  increasing  business 
facilities,  giving  encouragement  to  improvements  and  adding  to  taxable 
values." 

In  the  use  of  streets,  sidewalks  are  built  for  pedestrians  and  spur 
walks  are  commonly  constructed  therefrom  to  residences  and  other 
property.  Spur  roads  are  run  across  sidewalks  to  stables  and  busi- 
ness property.  If  the  express  car  to  be  used  in  transporting  the 
defendants'  goods,  wares  and  merchandise  should  be  constructed  with 
sufficient  power  as  a  motor  car,  I  assume  there  would  be  no  question 
as  to  the  legal  right  of  the  defendants  to  run  the  car  over  the  sidewalk 
on  their  driveway  into  their  department  store  as  trucks  with  teams  are 
now  driven  therein. 

•  ••«•••• 

For  the  purpose  of  confining  abutting  owners  to  a  reasonable  use  of 
the  public  streets  it  is  no  more  necessary  to  require  that  express  cars 
be  loaded  and  unloaded  in  the  streets  and  the  highways  than  it  is  that 
individual  consumers  of  gas  or  water  be  required  to  take  the  same  in 
some  way  from  the  distributing  pipes  in  the  public  streets.  A  reason- 
able use  of  all  public  service  corporations  would  seem  to  re(]uire  that 
abutting  owners  of  property  be  allowed  to  make  such  reasonable  con- 


TEXAKKANA  GAS  &  ELECTRIC  CO.  V.   TEXARKANA.      433 

nection  with  the  public  service  pipes,  conduits  or  tracks  as  will  tend  to 
public  utility.  The  defendants'  goods,  wares  and  merchandise  must  be 
transported  from  place  to  place,  and  I  cannot  say  that  running  one  car 
over  a  spur  track  from  the  street  surface  railroad  would  be  more  incon- 
venient to  the  public  than  running  heavy  motor  cars  or  trucks  drawn 
by  horses  at  irregular  intervals  over  the  defendants'  driveway.  If  such 
a  use  of  the  street  tends  to  public  benefit  it  cannot  be  said  to  be  an 
unreasonable  use  thereof.  No  actual  permanent  taking  of  a  portion  of 
the  street  for  private  purposes  is  proposed.  The  board  of  estimate  and 
apportionment  in  their  discretion  may  have  found  that  the  use  of  such 
spur  track  within  the  hours  mentioned  would  relieve  a  congested  street 
and  generally  tend  to  the  public  good.  Where  the  power  to  grant 
street  privileges  or  franchises  is  conferred  upon  a  municipality  the 
exercise  of  the  power  is  discretionary  with  the  municipality  and  its 
action  is  not  as  a  rule  subject  to  control  by  the  courts. 

Edward  T.  Baktlett,  J.,  delivered  an  opinion  concurring  with 
O'Brien,  J. ;  Vann  and  Hiscock,  JJ.,  also  concurred.  Cullen,  C.  J., 
and  Haight,  J.,  concurred  with  Chase,  J. 


TEXARKANA  GAS  &  ELECTRIC  CO.  v.   TEXARKANA. 

1909.     123  S.   W.  Rep.  213. 

Hodges,  J.  The  appellant  is  a  private  corporation,  is  now  and  has 
been  for  many  years  engaged  in  the  business  of  operating  an  electric 
street  car  system  and  an  electric  light  plant  in  the  city  of  Texarkana, 
Tex. ,  for  the  purpose  of  furnishing  to  the  residents  of  said  city  street 
car  service  and  electric  lights.  In  carrying  on  its  business  it  has 
erected  and  uses  poles  and  wires  placed  and  strung  in  the  manner 
usually  adopted  in  such  cases.  In  the  early  part  of  1907,  the  city  of 
Texarkana  procured  from  the  Legislature  a  special  charter.  Prior  to 
that  time  and  since  1874  it  had  existed  as  a  municipality  incorporated 
under  the  general  laws  of  the  state.  On  February  10,  1908,  the  city 
adopted  an  ordinance  entitled,  "  An  ordinance  to  regulate  the  placing 
of  poles  and  stringing  of  wires  thereon  along,  over  and  through  the 
streets  and  alleys, and  other  public  highways  of  the  city  of  Texarkana, 
Texas ;  providing  for  a  license  and  a  license  fee  upon  every  such  pole, 
and  providing  for  the  collection  of  the  same."  It  is  then  ordained, 
first,  "That  any  such  person,  firm,  corporation  or  association  owning, 
operating  or  conducting  any  of  the  following  public  service,  business 
or  engagements  to  or  with  the  general  public  or  offering  to  do  so  for 
hire  within  the  corporate  limits  of  the  said  city  or  partially  within  and 
partially  without  the  corporate  limits  of  the  said  city,  viz.,  telegraph 
business,  telephone  business,  or  telegraph  and  telephone  business,  or 
electric  light  or  electric  street  railway,  or  either  or  both,  or  any  other 


434      TEXAEKANA  GAS  &   ELECTRIC  CO.  V.   TEXARKANA. 

business  where  electric  wires  are  used  and  suspended  on  poles  over, 
along  or  across  any  of  the  public  streets,  alleys  or  highways,  within  the 
said  city,  shall  be  and  each  is  hereby  required  to  pay  to  the  said  city 
for  the  use  and  benefit  of  the  street  and  bridge  fund  a  license  fee  of  fifty 
(50c.)  cents  for  each  and  every  pole  that  is  or  may  be  owned  by  any  such 
person,  firm,  corporation  or  association  and  occupying  any  street,  alley 
or  public  highway  or  standing  and  erected  thereon,  and  upon  every  said 
pole  an  annual  license  and  license  fee  is  here  levied  and  assessed  for  the 
year  1908  and  for  each  succeeding  year  thereafter."  Then  follow  pro- 
visions intended  as  regulations  governing  the  location  of  the  poles  upon 
the  streets  and  alleys,  their  size  and  position,  distance  and  height,  and 
other  details  generally  imposed  by  cities,  and  which  it  is  not  necessary 
to  mention  here  more  fully.  The  second  subdivision  is  as  follows : 
"  That  each  and  every  person,  firm,  corporation  or  association,  using 
wires  and  poles  in  the  streets,  alleys  or  highways,  as  aforesaid,  shall 
annually  before  the  20th  day  of  February  of  each  year,  file  with  the 
city  council  a  certificate  which  shall  be  duly  sworn  to,  correctly  stating 
the  number  of  poles  owned  by  him  or  them  within  the  said  city  and  it 
shall  thereupon  be  the  duty  of  the  city  council  to  charge  the  city  tax 
collector  with  the  sum  of  money  equal  to  fifty  (50c)  cents  for  each  and 
every  one  of  said  poles  and  a  violation  of  this  section  shall  subject  any 
such  person,  firm,  corporation  or  association  of  persons  conducting  any 
of  the  public  utilities  hereinbefore  stated  and  so  violating  it  to  the  fine 
of  twenty-five  ($25.00)  dollars  and  a  penalty  of  fifteen  ($15.00)  dollars 
for  each  and  every  day  that  such  violation  shall  exist.  And  provided 
further  that  any  failure  by  any  person,  firm,  corporation  or  association 
to  file  said  sworn  statement  setting  forth  the  number  of  poles,  or  if  the 
city  council  shall  be  doubtful  of  said  affidavit  correctly  stating  the 
number  of  poles,  it  may  nevertheless  have  an  inventory  of  the  said 
poles  made  upon  its  own  behalf  and  account  and  such  inventories  to 
be  made  by  the  city  engineer  who  shall  make  the  sworn  report  to  the 
city  council  in  writing  when  requested,  and  such  report  of  said  engi- 
neer shall  be  conclusive  as  to  the  facts  therein  recited,  and  the  entries 
made  upon  the  books  of  the  tax  collector  by  him  and  the  charges 
against  such  tax  collector  shall  be  based  upon  the  report  of  said  city 
engineer  when  the  report  shall  have  been  made  by  him.  And  each  and 
every  person,  firm,  corporation  or  association  so  using  wires  and  poles 
as  aforesaid  that  are  now  or  may  hereafter  be  placed  in  and  along  the 
said  streets  or  alleys  of  the  said  city,  shall  pay  to  the  city  of  Texar- 
kana,  Texas,  to  become  a  part  of  the  street  and  bridge  fund,  annually, 
on  or  before  the  lOth  day  of  March  of  each  and  every  year,  as  a  license 
and  as  a  license  fee,  the  sum  of  fifty  (50c)  cents  for  each  and  every 
pole  so  erected,  maintained  or  used  on  said  streets,  alleys  or  highways 
within  the  said  city  by  any  such  person,  firm,  corporation  or  association 
engaged  in  any  of  the  foregoing  mentioned  public  service  and  the  same 
shall  be  paid  to  the  tax  collector  of  the  said  city  by  the  lOth  day  of 
March,  of  each  year,  and  upon  the  failure  of  any  such  person,  firm. 


TEXAEKANA    GAS   &   ELECTRIC    CO.    V.   TEXAKKANA.  435 

corporation  or  association  to  make  said  payment  annually  on  or  before 
the  10th  day  of  March,  it  shall  be  and  is  hereby  made  tiie  duty  of  the 
city  attorney  to  take  cognizance  of  said  failure  and  to  proceed  at  once 
to  the  collection  of  the  same  and  to  the  enforcement  of  this  ordinance." 
On  the  20th  of  February,  1908,  the  general  manager  of  the  appellant 
company,  in  compliance  with  the  provisions  of  the  foregoing  ordinance 
requiring  a  report  of  the  number  of  poles  owned  and  used  within  the 
city  limits,  filed  a  written  report  showing  that  appellant  at  that  time 
owned  and  used  787  poles  within  the  limits  of  the  city,  in  the  conduct 
of  its  business.  This  report,  however,  was  made  under  protest,  and, 
as  stated  therein,  for  the  purpose  of  avoiding  the  penalties  imposed  by 
reason  of  the  failure  to  make  it.  The  appellant  refused  to  pay  the  tax 
of  50  cents  per  pole,  amounting  to  $391.50,  which  had  been  charged 
against  it  as  a  license  fee  under  the  provisions  of  the  ordinance  before 
mentioned,  and  this  suit  was  instituted  by  the  city  to  enforce  its  col- 
lection. As  a  defense  the  appellant  alleged  and  proved  upon  the  trial 
that  some  years  before  the  granting  of  the  special  charter  to  the  city  of 
Texarkana,  and  while  the  latter  was  existing  as  a  municipal  corpora- 
tion under  the  general  laws  of  the  state,  it  obtained  from  the  city  a 
franchise,  or  right,  which  authorized  it  to  place  and  set  its  poles  on  the 
streets  and  alleys  of  the  city,  and  that  by  virtue  of  that  authority  it 
had  placed  and  set  its  poles  on  the  streets  and  alleys,  and  was  using 
and  maintaining  them  in  that  position  at  the  time  the  ordinance  above 
mentioned  was  passed,  and  that  the  appellant  was  then  and  is  now  act- 
ing: bv  virtue  of  the  original  franchise  referred  to.  It  was  also  shown 
that  in  the  grant  of  the  franchise  claimed  the  terms  required  the  appel- 
lant to  furnish  free  of  charge  electric  lights  for  use  in  the  city  hall,  fire- 
house,  and  jail,  and  to  furnish  electric  street  lights  at  certain  prices 
agreed  on,  and  that  no  other  license  fees  were  therein  exacted.  It  was 
further  shown  that  the  appellant  has  at  all  times  complied  with  the  terms 
and  conditions  imposed  in  the  grant  of  the  aforesaid  franchise,  and  was 
in  all  things  complying  with  the  regulations  made  for  its  government 
in  the  exercise  of  that  right.  The  case  was  tried  before  the  court  with- 
out a  jury,  and  a  judgment  rendered  in  favor  of  appellee  for  the  full 
sum  sued  for.  The  correctness  of  that  judgment  is  assailed  upon  tlie 
ground  that  the  city  had  no  authority  to  levy  and  collect  a  license  fee 
of  fifty  cents  per  pole  on  the  poles  owned  and  used  by  the  appellant 
along  the  streets  and  alleys  of  the  city  ;  that  having  theretofore  granted 
to  appellant  the  right  to  use  and  occupy  the  streets  and  alleys  with  its 
poles  and  wires  for  the  purposes  for  which  they  were  then  being  used, 
the  city  had  no  legal  right  thereafter  to  impose  an  additional  burden 
or  tax  upon  appellant  for  such  use. 

Counsel  for  the  city  do  not  contend  that  this  ordinance  should  be 
sustained  as  a  valid  exercise  of  the  power  of  the  city  to  levy  and  collect 
taxes  either  upon  property  or  occupations.  They  do  not  deny  that  as 
a  measure  for  raising  revenue  it  would  be  without  authority.  But  they 
justify  the  provisions  of  the  ordinance  objected  to  upon  the  ground 


436      TEXARKANA  GAS  &   ELECTRIC  CO.  V.    TEXARKANA. 

that  it  is  a  valid  and  proper  exercise  of  the  police  power  of  the  city, 
and  refer  to  other  portions  of  the  ordinance  which  prescribe  regulations 
governing  the  placing  and,  maintaining  of  poles  and  wires,  designating 
the  size  and  quality  of  the  poles  that  shall  be  used,  and  various  other 
details  intended  to  prevent  any  unnecessary^  obstruction  of  the  streets 
and  alleys.  It  must  be  conceded  that  the  provisions  of  this  ordinance, 
including  the  levy  of  the  license  fee,  fall  within  the  usual  police  powers 
of  a  municipal  corporation  having  the  right  to  regulate  and  control  the 
use  and  occupancy  of  its  highways  by  persons  engaged  in  conducting 
public  utilities,  such  as  that  of  the  appellant,  for  private  gain.  But  it 
does  not  follow  from  this  that  the  exercise  of  some  part  of  this  police 
power  may  not  under  certain  conditions  be  resisted  upon  the  ground 
that  it  is  an  attempt  to  violate  a  vested  right.  The  state,  as  the  trustee 
for  its  citizens,  is  the  ultimate  holder  and  owner  of  a  paramount  au- 
thority to  govern  and  regulate  the  use  and  occupancy,  of  the  public 
highways  of  the  country.  Municipal  corporations  succeed  to  this  au- 
thority by  virtue  of  the  grants  contained  in  their  charters.  3  Abbott, 
Municipal  Corp.  §  913.  When  thus  empowered,  cities  have  the  au- 
thority to  grant  to  private  parties  the  privilege  of  permanently  occupy- 
ing and  using  certain  portions  of  their  highways  for  the  purpose  of 
carrying  on  a  business  or  enterprise  furnishing  some  public  service. 
In  granting  the  right,  or  franchise  as  it  is  called,  the  city  can  impose 
conditions  or  charge  a  fee  for  the  privilege  given,  which  the  applicant 
can  accept  or  reject  at  his  pleasure ;  but,  having  accepted  it,  he  takes 
the  franchise  subject  to  the  conditions  imposed,  and  must  pay  the  con- 
sideration exacted.  3  Abbott,  Municipal  Corp.  §  908.  For  without 
the  consent  of  the  municipality  no  one  has  any  right  to  permanently 
use  or  occupy  any  portion  of  the  public  highways  to  the  exclusion  of 
others'.  The  privilege  is  granted  presumptively  for  the  benefit  of  the 
public  in  securing  the  use  of  some  agency  of  general  utility  ;  and  when 
a  consideration  is  received  in  return,  it  inures  to  the  benefit  of  the  com- 
munity by  going  into  the  public  treasury.  It  can  therefore  be  readily 
seen  that  such  transactions  have  many  of  the  elements  of  a  contract. 
The  concession  cannot  be  regarded  otherwise  than  as  a  valuable  prop- 
erty right  the  revocation  of  which  after  acceptance  might  entail  serious 
damage.  If  the  original  franchise  relied  upon  in  this  case  was  one 
which  the  city  of  Texarkana  had  the  authority  in  the  first  instance  to 
grant,  one  which  public  policy  did  not  prohibit,  it  was  a  concession  en- 
titled to  the  protection  generally  accorded  to  vested  rights  secured  by 
contracts.  New  York,  Lake  Erie  &  Western  R.  R.  Co.  v.  Common- 
wealth of  Pennsylvania,  153  U.  S.  628,  14  Sup.  Ct.  952,  38  L.  Ed.  846; 
City  o/St.  L.  V.  W.  U.  Tel.  Co.,  148  U.  S.  93,  13  Sup.  Ct,  485,  37 
L.  Ed.  380;  Louisville  Trust  Co.  v.  City  of  Cin.,  76  Fed.  296,  22 
C.  C.  A.  334;  3  Abbott,  Municipal  Corp.  §297;  Mayor  v.  Houston 
Ry.  Co.,  83  Tex.  555,  19  S.  W.  127,  49  Am.  St.  Rep.  679;  Jumbo 
Cattle  Co.  V.  Bacon,  79  Tex.  12,  14  S.  W.  840;  City  of  Detroit  v.  De- 
troit R.  Co.,  184  U.  S.  378,  22  Sup.  Ct.  410,  46  L.  Ed.  607;   City  Ry. 


TEXAKKAXA    GAS   &   ELECTKIC    CO.   V.    TEXARKANA.  437 

Co.  V.  Citizens'  Sf.  Ry.  Co.,  166  U.  S.  558,  17  Sup.  Ct.  653,  41  L.  Ed. 
1114;  3  Abbott,  Municipal  Corp.  §§  896,  919,  and  cases  cited.  There 
seems  to  be  no  question  made  as  to  the  existence  of  that  authority  on 
the  part  of  the  city  at  the  time  it  granted  the  franchise  here  claimed. 
To  refuse  protection  to  such  concessions  as  this  would  expose  valuable 
privileges  purchased  for  a  consideration,  and  extensive  investments  in 
property,  to  the  arbitrary  control  of  municipal  governments,  and  thus 
permit  the  practical  confiscation  of  valuable  rights.  It  is  no  answer 
to  the  proposition  stated  to  say  that  a  city  cannot  part  with  its  police 
power  over  its  highways,  for  within  certain  limitations  this  can  be 
done,  and,  when  it  is  done,  the  dominion  cannot  be  arbitrarily  resumed 
when  private  rights  have  intervened  and  there  has  been  no  departure 
from  the  conditions  imposed  in  making  the  concession,  or  those  neces- 
sarily implied  by  law.  Broadly  stated,  the  police  power  of  the  city 
is  the  power  to  govern,  exercised  either  by  restriction  or  compulsion, 
in  promoting  the  general  good  of  the  people.  Freund,  Police  Powers, 
pp.  2,  3.  While  it  is  true  that  the  city  cannot  surrender  that  portion 
of  its  police  power  the  exercise  of  which  is  essential  to  the  promotion  of 
the  general  welfare  in  protecting  personal  and  property  rights,  it  can 
make  concessions  by  which  the  general  welfare  is  promoted  in  securing 
the  services  of  some  public  utility,  and  which  does  not  involve  the  sur- 
render of  its  necessary  governmental  functions.  The  fact  that  the  city 
cannot  divest  itself  of  the  power  to  remove  an  unlawful  obstruction 
from  its  highways  does  not  prove  that  it  may  not  grant  to  others  the 
right  to  permanently  use  portions  of  those  highways  for  a  public  pur- 
pose when  such  use  does  not  amount  to  a  nuisance.  When  the  city  of 
Texarkana  granted  the  franchise  to  the  appellant  authorizing  it,  for 
the  consideration  named,  to  use  and  occupy  the  streets  and  alleys  for 
carrying  on  its  business,  it  did  not  surrender  any  governmental  func- 
tion or  divest  itself  of  any  power  necessary  to  protect  its  citizens 
against  any  unlawful  invasion  of  their  rights.  It  merely  granted  an 
easement  upon  the  assumption  that  the  service  thereby  secured  would 
operate  to  the  public  benefit,  and  exhausted  its  power  to  demand  a 
further  consideration  from  appellant  for  the  privilege  conferred  till  the 
expiration  of  the  grant.  The  terms  upon  which  the  right  was  granted 
fixed  only  the  contractual  relations  of  the  parties;  and  the  easement  — 
that  which  the  city  could  grant  —  became  vested.  If  the  city  can  at 
this  time  demand  and  collect  from  the  appellant  a  further  license  fee 
as  a  rental  or  charge  for  the  use  of  the  streets,  it  puts  the  appellant  in 
the  attitude  of  being  compelled  to  continue  its  use  of  the  franchise  upon 
terms  which  it  might  not  have  accepted  in  the  beginning,  or  of  surren- 
dering its  right  and  losing  valuable  improvements  made  upon  the  faith 
of  the  original  grant.  To  permit  the  exercise  of  such  authority  would 
sanction  the  enactment  of  a  measure  violative  of  contractual  obliga- 
tions. None  of  the  authorities  cited  by  appellee  support  its  contention 
further  than  to  hold  that  the  levy  and  collection  of  a  license  fee  for  the 
privilege  of  enjoying  special  rights  upon  the  streets  is  an  exercise  of 


438  SHERBURNE  V.   PORTSMOUTH. 

the  police  power.  But  none  of  them  go  so  far  as  to  say  that  this  bur- 
den naay  be  imposed  upon  one  a  second  time  for  the  same  franchise  after 
a  previous  grant.  We  do  not  hold  that  the  ordinance  in  question  is  in- 
valid, but  that  those  provisions  which  authorize  the  levy  and  collection 
of  the  license  fee  cannot  be  enforced  against  the  appellant  company, 
for  the  reason  that  the  appellee  had  previously  granted  the^ranchise 
under  which  it  was  occupying  the  streets  of  the  city. 

The  judgment  of  the  county  court  is  reversed,  and  judgment  here 
rendered  for  the  appellant.  All  costs  both  of  this  court  and  of  the 
court  below  are  adjudged  against  the  appellee. 


\ 


\7-v 


SHERBURNE   v.   PORTSMOUTH. 

1904.    72  N.  II.  539. 

Bill  in  equity,  to  restrain  the  defendant  city  from  building  a  base- 
ball park  at  the  Plains,  a  public  common  containing  about  eleven  acres, 
which  was  given  to  the  city  in  1716  for  the  drawing  of  a  militia  for  the 
town  and  province  and  has  been  used  since  for  that  purpose  and  by 
the  public  generally  for  a  playground ;  also  to  restrain  the  city  council 
from  voting  to  fence  the  Plains  "  for  the  purpose  of  amusement  and 
the  better  protection  of  city  property."  The  bill  alleges  that  the  city 
councils  intend,  under  this  vote,  to  enclose  the  greater  part  of  the  Plains 
with  a  high  board  fence  and  give  the  control  of  the  premises  to  certain 
individuals  who  will  use  them  for  a  baseball  park  and  athletic  field, 
and  will  exclude  all  who  do  not  pay  an  admission  fee.  The  plaintiffs 
are  taxpayers  in  Portsmouth  and  own  property  adjoining  the  Plains, 
The  questions  of  law  arising  upon  the  defendants'  demurrer  were 
transferred  from  the  October  term,  1903,  of  the  Superior  Court,  by 
Pike,  J. 

Young,  J.^  .  .  .  The  Plains  being  a  public  common,  the  city  councils 
have  power  to  regulate  its  use.  P.  S.,  c.  50,  §  10,  cl.  XIV.  The 
only  limitations  upon  their  right  to  determine  the  uses  to  which  it  may 
be  devoted  are  that  they  must  be  public,  intended  to  promote  the 
object  for  which  it  was  given,  and  that  they  do  not  constitute  an  un- 
reasonable use  of  the  land.  They  may  devote  the  Plains  to  any  uses 
within  these  limits  that  seem  to  them  to  be  wise  and  intended  to  pro- 
mote the  best  interests  of  the  public.  They  may  permit  an  individual 
or  an  association  to  occupy  the  whole  or  a  part  of  the  Plains  for  the 
purpose  of  furnishing  the  public  with  recreation.  As  an  incident  of 
their  right  to  permit  an  individual  to  give  exhibitions  at  the  Plains, 
they  may  permit  him  to  erect  the  structures  necessary  to  carry  on  the 
business,  if  that  would  be  a  reasonable  use  of  the  premises.     But  if, 

1  So  much  of  the  opinion  as  discusses  tlie  power  of  the  court  to  restrain  city 
councils  by  injunction  is  omitted.  —  Ed 


SHERBURNE  V.    PORTSMOUTH.  439 

considering  its  situation  and  surroundings,  using  the  Plains  for  a 
baseball  ground  would  constitute  an  unreasonable  interference  with 
the  rights  of  the  adjoining  proprietors,  or  if  the  erection  of  structures 
incident  to  such  use  would  constitute  an  unreasonable  interference  with 
the  right  of  the  public  to  use  the  premises,  the  city  councils  cannot 
permit  any  one  to  use  the  Plains  for  that  purpose  ;  for  it  would  be 
permitting  him  to  maintain  a  nuisance,  and  the  city  no  more  than  an 
individual  can  authorize  the  maintenance  of  a  nuisance.  If  the  city 
councils  may  permit  an  individual  to  use  the  Plains  for  a  baseball 
park,  they  can  only  give  him  the  exclusive  control  of  the  premises  for  a 
reasonable  time ;  for  the  public  cannot  be  excluded  from  the  premises 
for  an  unreasonable  time.  AVhat  would  be  a  reasonable  time,  whether 
maintaining  a  baseball  park  at  the  Plains  would  be  a  reasonable  use  of 
the  premises,  and  whether  the  erection  of  the  structures  incident  to 
such  use  would  be  an  unreasonable  interference  with  the  right  of  the 
public  to  use  the  premises,  are  all  questions  of  fact.  Ladd  v.  Brick 
Co.,  68  N.  H.  185. 

Even  if  the  city  councils  may  permit  an  individual  to  build  a  base- 
ball park  at  the  Plains,  they  cannot  build  one  with  the  city's  money ; 
for  they  can  use  that  only  for  the  purposes  named  in  section  4,  chapter 
40,  Public  Statutes,  or  for  the  purposes  for  which  money  may  be 
raised  by  taxation.  Goce  v.  Epjniig,  41  N.  H.  539  ;  Merrill  v.  Plain- 
field,  45  N.  H.  126.  This  does  not  authorize  cities  to  build  baseball 
parks.  Neither  can  they  build  one  under  the  name  of  fencing  the 
Plains ;  for  it  is  axiomatic  that  they  may  not  do  by  indirection  that 
which  they  could  not  do  in  a  direct  proceeding.  Although  they  may 
use  public  funds  to  build  such  a  fence  as  they  consider  necessary  to 
protect  the  property  or  to  make  it  more  attractive,  they  cannot  use  the 
money  of  the  city  to  build  such  a  fence  as  would  be  necessary  to  make 
the  Plains  available  for  exhibition  purposes,  any  more  than  they  could 
use  it  to  build  a  grand-stand  or  any  other  structures  which  constitute 
the  equipment  of  a  baseball  park ;  for  such  a  fence  would  neither  in- 
crease the  attractiveness  of  the  property  nor  be  necessary  for  its 
protection. 

The  fact  that  the  plaintiffs'  property  adjoins  the  Plains  will  not 
prevent  the  city  councils  from  making  any  reasonable  use  of  the 
premises  which  they  think  will  be  for  the  public  good.  The  plaintiffs 
have  no  right  in  the  Plains  not  common  to  every  taxpayer  in  Ports- 
mouth, except  that  of  preventing  the  city  from  making  an  unreason- 
able use  of  the  premises  ;  for  it  does  not  appear  that  they  derived  their 
title  from  the  city  after  the  Plains  had  been  dedicated  to  public  uses, 
nor  that  its  dedication  and  the  sale  of  the  lots  that  adjoin  it  were  parts 
of  the  same  transaction. 

Notwithstanding  the  court  has  jurisdiction  to  enjoin  the  city  councils 
when  they  are  acting  in  their  administrative  capacity  if  the  proposed 
action  is  illegal,  they  cannot  be  enjoined  from  passing  the  resolution  to 
fence  the  Plains,  for  the  resolution  itself  is  legal ;  it  only  authorizes 


440  STEOCK   V.    EAST    OEANGE. 

the  building  of  such  a  fence  as  is  necessary  to  protect  the  property  and 
to  make  it  more  attractive.  But  the  city  councils  may  be  enjoined 
from  taking  any  action  under  this  resolution  toward  building  a  base- 
ball park  and  from  permitting  any  person  to  build  one  at  the  Plains, 
if  that  would  be  an  unreasonable  use  of  the  premises. 

Demurrer'  ooerrvled. 
Parsons,  C.  J.,  and  Walker  and  Bixgham,  JJ.,  concurred: 
Chase,  J.,  concurred  in  the  result  solely  on  the  ground  that  the  pro- 
posed action  of  the  city  councils  will  convert  a  public  common  or 
square  into  a  private  park,  —  a  change  that  they  have  not  power  to 
make,  —  and  that  an  appropriation  of  the  city's  money  for  such  pur- 
pose would  be  unauthorized  and  illegal,  and  may  be  enjoined  at  the 
suit  of  taxpayers. 


STROCK  V.  EAST  ORANGE. 
1910.     77  Atl.  Rep.  1051. 

Parker,  J.^  In  Strock  v.  East  Orange,  77  N.  J.  Law,  382,  72  Atl. 
34,  we  set  aside  a  resolution  of  the  playground  commissioners  of  East 
Orange  granting  a  permit  for  the  use  of  the  local  playground,  for  the 
reason  that  section  3  of  the  playground  act  as  amended  in  1908  (P.  L. 
p.  165)  established  an  illusory  classification  of  playgrounds  by  acreage ; 
and  also  because  it  permitted  a  use  of  municipal  property  that  was 
tantamount  to  giving  it  in  aid  of  individuals  or  associations.  Subse- 
quent to  this  decision  the  Legislature  passed  a  supplement  to  the  play- 
ground act  in  1909  (P.  L.  p.  76)  apparently  designed  to  cure  these 
defects,  and  which  enacts  as  follows:  "The  board  of  playground  com- 
missioners created  or  constituted  in  any  city  of  this  state,  in  order  to 
provide  the  funds,  in  whole  or  in  part,  necessary  to  improve,  maintain 
and  police  the  playground  or  recreation  places  under  its  control,  shall 
have  the  power  and  authority  to  arrange  and  provide  for  the  giving  of 
outdoor  exhibitions,  concerts,  games  and  contests,  and  the  power  and 
authority  to  use  and  employ  the  said  playgrounds  or  recreation  places 
for  the  purpose  of  giving  thereon  outdoor  exhibitions,  concerts  and 
contests,  and  said  board  shall  have  the  power  and  authority  to  charge 
and  collect  a  reasonable  admission  fee  for  each  person  entering  such 
playground  or  recreation  place,  during  the  time  or  times  when  the  same 
is  being  used  or  employed  for  such  purpose  ;  provided  however,  that 
the  said  board  shall  not  use  or  employ  any  such  playground  or  recrea- 
tion place  for  such  purpose  for  a  gieater  period  than  eight  hours  in 
any  week,  nor  on  more  than  two  days  in  any  one  week,  and  when  any 
such  playground  or  recreation  place  is  used  for  such  purpose  no  admis- 
sion fee  shall  be  charged  or  collected  from  children  under  twelve  years 

1  Part  of  tlie  opinion  is  omitted. — Ed. 


STROCK   V.    EAST   ORANGE.  441 

of  age."  Tu  pursuance  of  this  supplement,  the  playground  commis- 
sioners in  February,  1910,  passed  the  following  resolution,  which  is 
now  before  us  on  certiorari:  "  Resolved,  that  the  board  of  playground 
commissioners  of  the  city  of  East  Orange,  does  hereby  determine  it 
shall  and  will,  under  the  authority  of  the  act  of  li09,  for  the  purpose 
of  providing  funds  for  the  maintenance,  care  and  policing  of  the  play- 
ground, provide  for  the  playing  of  baseball  games  at  the  East  Orange 
Oval  on  the  afternoons  of  the  first  and  third  Saturdays  of  June,  July, 
August  and  Se[)tember  of  this  year,  at  which  games  an  admission  fee 
of  twenty-five  cents  shall  be  charged  to  all  persons  over  the  age  of 
twelve  years.  Be  it  further  resolved,  that  the  secretary  of  this  board 
be  and  he  is  hereby  directed  to  arrange  for  such  games  with  suitable 
teams  of  ball  players  upon  terms  most  advantageous  to  the  city  of  East 
Orange,  and  not  exceeding  in  any  case  payment  of  more  than  forty 
per  cent,  of  the  net  receipts  to  the  baseball  teams  which  are  to  play  any 
of  said  games.  Provided,  that  each  and  every  proposition  for  the  play- 
ing of  such  games  shall  before  it  becomes  binding  be  submitted  to  and 
approved  by  this  board.  Resolved,  that  it  is  the  sense  of  this  board 
that  permission  be  granted  to  the  State  Y.  M.  C.  A.  to  hold  an  athletic 
meet  and  baseball  game  at  the  East  Orange  Oval,  Saturday,  June  11, 
1910,  upon  the  following  terms;  an  admission  fee  of  twenty-five  cents 
be  charged  to  all  persons  over  the  age  of  twelve  years ;  the  State 
Y.  M.  C.  A.  to  pay  all  the  expense  of  advertising  and  all  other  inci- 
dental expenses,  and  the  State  Y.  M.  C,  A.  to  receive  forty  per  cent, 
of  the  net  receipts."  The  question  now  submitted  is  whether  the 
supplement  of  1909  and  the  resolution  of  1910  passed  thereunder  are 
invalid  for  the  reasons  given  in  the  former  opinion  of  this  court  re- 
specting the  other  resolutions,  or  for  au}-  other  reason. 

It  will  be  observed  that  the  acreage  clause  is  eliminated  from  the 
statute  of  1909,  and  therefore  that  point  is  out  of  the  case  ;  the  statute 
applying  to  all  playgrounds  irrespective  of  area. 

It  should  be  noted  that  b}^  the  act  of  1909  the  playgrounds  cannot 
be  used  in  any  one  week  on  more  than  two  days,  nor  for  a  total  period 
of  more  than  eight  hours.  This  seems  to  dispose  of  our  criticism  that 
by  the  act  of  1908  the  commissioners  were  in  effect  empowered  to 
permit  private  organizations  to  monopolize  the  ground  for  the  entire 
season. 

The  act  of  1909  further  differs  from  that  of  1908  in  resting  the 
authority  to  use  the  playground  for  exhibitions,  etc.,  on  the  theory  of 
raising  funds  to  provide  for  the  improvement,  maintenance,  and  polic- 
ing of  the  playgrounds,  and  in  contemplating  the  collection  for  that 
purpose  by  the  commissioners  of  a  reasonable  admission  fee;  whereas, 
in  the  amendment  of  1908,  nothing  is  said  about  revenue  or  the  collec- 
tion of  admission  fees,  but  the  board  was  left  free  to  give  the  use  of 
the  playgrounds  without  compensation  and  thus  enable  the  licensee  for 
the  time  being  to  make  money  out  of  them. 

Another  difference  worthy  of  note,  although  perhaps  not  so  impor- 


442  STROCK   V.    EAST    ORANGE. 

tant,  is  that  instead  of  granting  permits  to  organizations  or  individ- 
uals, as  contemplated  by  the  act  of  1908,  the  new  statute  speaks  of 
"  arranging  and  providing  for  the  giving  of  exhibitions,"  etc.  The 
difference  in  the  scheme  seems  to  be  plain.  Instead  of  undertaking  to 
endow  the  playground  commission  with  power  to  give  away  the  use  of 
public  property  for  nothing,  and  for  indefinite  periods  by  successive 
permits,  thereby  depriving  the  public  of  any  opportunity  of  using  the 
playground  except  on  payment  of  an  admission  fee,  and  then  only  for 
the  purpose  of  witnessing  an  exhibition,  the  Legislature  has  formu- 
lated a  plan  for  the  partial  and  restricted  use  of  the  playgrounds  for 
exhibitions  under  the  direct  auspices  of  the  commissioners,  and  with 
the  requirement  that  the  net  receipts  shall  be  used  in  payment  of 
expenses  for  policing,   maintenance,  and  improvement. 

We  are  asked  to  declare  this  act  unconstitutional  on  the  ground  pre- 
viously urged  as  affecting  the  act  of  1908,  viz.,  that  it  authorizes  the 
giving  away  of  public  property  for  private  benefit ;  but  an  act  of 
the  Legislature  should  not  be  declared  unconstitutional  unless  it  is 
clearly  so,  and  any  reasonable  construction  of  the  act  that  will  save  it 
sliould  be  adopted.  Such  a  construction  we  think  is  available  in  the 
present  case.  We  think  that  the  giving  of  occasional  athletic  exhibi- 
tions is  not  inconsistent  with  the  idea  of  a  playground,  but  entirely 
germane  to  it.  The  playground,  after  all,  is  nothing  but  a  modified 
park,  a  place  for  public  resort  and  recreation,  and  considerable  latitude 
is  allowed  to  municipal  bodies  in  charge  of  parks  in  the  matter  of  fur- 
nishing or  arranging  for  special  facilities  to  certain  portions  of  the 
public,  in  consideration  of  a  special  charge  for  the  same.  Park  con- 
cessions for  restaurants,  boats  to  hire,  donkey  rides,  rolling  chairs, 
and  so  on,  are  familiar  to  every  one;  and  the  payment  of  a  special 
charge  for  each  of  them  is  a  matter  of  course. 

The  practice  of  letting  out  concessions  on  public  grounds  for  revenue 
purposes  is  expressly  recognized  by  statute  in  the  case  of  seashore 
cities.  P.  L.  1900,  p.  285  ;  P.  L.  1904,  p.  199.  See  28  Cyc.  938.  So, 
also,  the  authorities  may  even  exclude  the  general  public  for  a  time 
and  restrict  the  use  of  the  park  for  that  i^eriod  to  a  limited  portion  of 
the  public,  so  long  as  the  length  of  time  is  not  unreasonable.  28  Cyc. 
937.  In  Sherburne  v.  Fortsnioufh,  72  N.  H.  539,  58  Atl.  38,  a  New 
Hampshire  case,  the  use  of  a  common  for  a  baseball  ground  was 
under  discussion,  and  the  court  was  of  opinion  that  the  test  of  legality 
was  whether  the  use  was  public,  in  accordance  with  the  dedication,  and 
not  an  unreasonable  use,  especially  as  to  time.  We  think  this  view  is 
a  sound  one,  and  that  it  may  safely  be  adopted  for  the  purposes  of  the 
present  case.  The  question  of  dedication,  as  will  appear  presently, 
does  not  arise  in  this  case.  That  the  proposed  use  is  public  we  think 
satisfactorily  appears.  While  not  appropriate  to  the  entire  public,  it 
is  adapted  for  a  considerable  portion  of  the  public  and  intended  to 
furnish  that  portion,  for  a  limited  period,  with  legitimate  recreation. 
It  is  quite  as  public  in  character  as  donkey  rides  for  children  and 


FOKT   WAYNE   V.   LAKE   SHOKE    &   MICHIGAN    SOUTHERN   RY.      443 

restaurants  for  the  haugry  in  a  park.  The  period  of  time,  also,  is 
strictly  limited  to  eight  hours  in  a  week,  which  the  Legislature  by  so 
enacting  has  declared  to  be  reasonable,  and  which  manifestly  is 
reasonable. 

But  it  is  claimed  that  the  provision  for  charging  entrance  fees  is  for 
the  purpose  of  raising  revenue,  and  consequently  an  exercise  of  the 
power  of  taxation,  and  thus  creates  a  double  taxation  by  requiring 
taxpaj'ers  to  pay  an  additional  fee  to  use  the  grounds  purchased  and 
otherwise  maintained  with  their  money.  But  we  do  not  think  this  can 
fairly  be  called  double  taxation,  because  the  necessary  effect  of  charg- 
ing an  entrance  fee  is  to  reduce  pro  tanto  the  amount  necessary  to  be 
raised  by  general  taxation.  Whether  the  amount  received  will  prob- 
ably be  adequate  for  that  purpose  is  a  question  left  by  the  Legislature 
to  the  business  judgment  of  the  commissioners,  and  will  be  a  test  of 
the  propriety  of  their  action  in  a  particular  case,  but  not  a  defect  in 
the  law  itself. 

So  we  do  not  think  that  the  act  of  1908,  fairly  construed,  justifies 
or  authorizes  the  park  commissioners  to  give  away  any  municipal 
property  or  the  use  of  it.  We  think,  on  the  other  hand,  that  a  proper 
construction  of  the  act  requires  them  to  collect  a  fair  and  reasonable 
compensation  to  the  city  for  the  limited  period  of  time  for  which  the 
use  of  the  playground  may  be  granted.  This  idea  is  embodied  in  the 
words  "arrange  and  provide  for"  and  in  the  further  provision  that 
the  board  may  charge  an  admission  fee.  So  long,  therefore,  as  the 
commission  in  arranging  for  the  giving  of  outdoor  exhibitions,  etc.,  do 
so  on  reasonable  terms  which  should  secure  a  fair  revenue  for  the  city 
from  the  privileges  granted  to  the  limited  extent  permitted  by  the 
present  statute,  we  do  not  think  that  its  action  in  arranging  for  an 
exhibition  with  individuals  or  organizations  on  a  percentage  basis  is 
illegal.  The  test  will  be  whether  the  proportion  of  the  receipts  coming 
to  the  city  is  reasonable  or  otherwise,  and  this  point  is  not  made  in 
the  present  case. 


FORT   WAYNE  v.   LAKE  SHORE  &  MICHIGAN   SOUTHERN 

RAILWAY. 

1892.     132  Ind.  558. 

Coffey,  J.^  This  was  an  action  brought  by  the  appellee  against 
the  appellant,  the  city  of  Fort  Wayne,  to  enjoin  the  latter  from  open- 
ing a  street  across  the  yard  and  tracks  of  the  appellee  situated  within 
the  limits  of  the  city.  The  material  facts  in  the  case,  as  they  appear 
in  the  special  findings  of  the  court,  are,  that  in  the  year  1806,  the  city 

1  Only  so  much  of  the  opinion  as  discusses  the  power  of  the  city  to  grant  the  land 
is  given.  —  Ed. 


444      FORT   WAYNE   V.   LAKE   SHOKE   &  MICHIGAN   SOUTHERN   RY. 

of  Fort  Wayne  acquired  a  tract  of  land  in  fee  simple,  by  purchase  and 
deed,  contiguous  to  the  city  for  the  purpose  of  a  public  park.  The 
deed  to  the  city  contained  no  limitation  nor  conditions  as  to  the  pur- 
pose for  which  the  land  was  purchased  or  was  to  be  used,  nor 
did  it  contain  any  restrictions  as  to  the  power  of  the  city  to  convey 
the  same.  On  the  23d  day  of  March  1869,  and  before  any  steps 
had  been  taken  to  convert  the  ground  into  a  public  park,  the  common 
council  of  the  city  adopted  a  resolution  by  the  terms  of  which  it 
granted  to  the  Fort  "Wayne,  Jackson  and  Saginaw  Railroad  Company 
twenty  acres  of  the  land  off  of  the  west  side  of  the  tract,  upon  the 
condition  that  the  railroad  company  should  run  its  line  through  the 
tract  so  granted,  and  locate  its  depots  for  local  purposes  thereon, 
and  also  locate  any  shops  it  might  find  necessary  to  build  at  Fort 
Wayne  upon  the  same  tract;  and  upon  the  further  condition  that 
the  property  and  the  north  side  addition  to  Fort  Wayne  should  become 
annexed  to  and  become  a  part  of  the  city  of  Fort  Wayne.  The  resolu- 
tion further  provided  that  when  the  railroad  company  had  complied 
with  the  conditions  of  the  grant  the  mayor  of  the  city  should  execute 
to  it  a  deed  of  conveyance  for  the  land  donated.  The  city  also  re- 
served the  right  to  cross  the  tracks  of  the  appellant  whenever  it  should 
determine  to  layoff  an  addition  composed  of  the  remainder  of  the  tract. 

The  donation  of  this  land  was  made  for  the  purpose  of  inducing  the  rail- 
road company  to  make  the  city  of  Fort  Wayne  its  southern  terminus,  and 
to  induce  it  to  locate  its  depots  for  local  purposes  and  its  shops  theron. 
Prior  to  February,  1871,  the  railroad  company  accepted  the  donation  on 
the  terms  and  conditions  expressed  in  its  resolution,  took  possession  of 
the  land  and  constructed  its  road-bed  through  the  same,  put  in  side  tracks 
and  switches,  and  erected  a  depot  building  thereon  on  the  faith  of  tlie 
resolution,  and  located  its  yards  on  the  ground  for  making  up  its  trains, 
storing  cars  and  conducting  its  business  as  a  passenger  and  freight 
railroad,  and  prior  to  the  12th  day  of  March,  1872,  had  expended  in  so 
doing  several  thousand  dollars.  On  the  l2th  day  of  March,  1872,  the 
common  council  of  the  city  passed  a  resolution  directing  the  mayor  of 
the  city  to  execute  to  the  railroad  company  a  deed  for  the  land,  which 
he  accordingly  did  on  the  26th  day  of  the  same  month. 

The  general  rule  is  that  municipal  corporations  possess  the  inciden- 
tal or  implied  right  to  alienate  or  dispose  of  the  property,  real  or  per- 
sonal, of  the  corporation,  of  a  private  nature,  unless  restiained  by 
charter  or  statute.  2  Dillon  Municipal  Corporations  (3d  ed.),  p.  569  ; 
Shannon  v.  0' Boyle,  51  Ind.  565;  1  Washb.  R.  P.  (3d  ed.)  61; 
Reynolds  v.  Commissioner,  etc.,  5  Ohio,  204;  Beach  v.  Ilaynes,  12 
\'t.  15  ;  Jamison  v.  Fopiana,  43  Mo.  565  ;  Board,  etc.,  v.  Patterson, 
56  111.  Ill;  Platter  X.  Board,  etc.,  103  Ind.  360;  Newbold  v.  Glenn, 
67  Md.  489. 

Municipal  corporations  cannot  dispose  of  property  of  a  public 
nature  in  violation  of  the  trusts  upon  which  it  is  held,  nor  of  a  public 
common  ;  but  there  is  a  distinction  between  property  purchased  for  a 


HURON  WATERWORKS  CO.  V.    HURON.  445 

public  common  and  not  yet  dedicated,  and  property  which  is  purchased 
for  that  purpose  and  actually  dedicated  to  that  use. 

The  case  of  Bmoh  v.  ILiynea^  siq)ra,  is  very  much  in  point  here. 
In  that  case  land  had  been  purchased  for  a  public  common,  and  it  was 
so  expressed  in  the  deed  of  conveyance,  but  before  it  was  actually 
dedicated  to  that  use  it  was  conveyed  away  by  the  town  of  Westford, 
in  which  was  vested  the  fee  simple  title,  and  it  was  held  that  such  con- 
veyance vested  in  the  grantee  a  good  title.  But  in  the  later  case  of 
State  V.  Woodward,  23  Vt.  92,  it  was  held  that  a  municipal  corpora- 
tion could  not  convey  away  a  public  common  after  it  had  been  actually 
dedicated  to  the  public  use.  Of  course,  the  deed  which  vests  title  in 
the  municipality  may  be  of  such  a  character  as  to  dedicate  the  property 
to  the  public  use,  but  such  is  not  the  case  here.  The  deed  to  the  city 
of  Fort  Wayne  for  the  land  in  controversy  vested  in  it  the  fee  simple 
title  without  limitation  or  restriction  as  to  its  alienation.  Such  being 
the  case,  we  think  the  city  had  the  power  to  convey  it  for  private  use 
at  any  time  before  it  was  dedicated  as  a  public  park.  Such  seems  to 
be  the  tenor  of  all  the  authorities  upon  the  subject. 


HURON  WATERWORKS  CO.  v.  HURON. 

1895.     7  S.  D.  9. 

Action  by  certain  taxpayers  of  the  city  of  Huron  to  have  the  sale  to 
the  Waterworks  Co.  of  waterworks  belonging  to  the  city  declared  void.^ 

Corson,  P.  J.  .  .  .  The  city  of  Huron  was  incorporated  under  a 
special  charter,  and  there  are  only  three  sections  called  to  our  attention 
as  bearing  upon  the  question,  which  are  as  follows  :  Section  1  provides  : 
"  That  the  city  of  Huron  .  .  .  shall  have  power  to  make  all  contracts 
necessary  to  the  exercise  of  its  corporate  powers,  to  purchase,  hold, 
lease,  transfer  and  convey  real  and  personal  property  for  the  use  of  the 
city  .  .  .  and  to  exercise  all  the  rights  and  privileges  pertaining  to  a 
municipal  corporation."  Section  7,  pt.  8,  provides  as  follows:  ''The 
city  council  shall  have  power  ...  to  organize  and  support  fire  com- 
panies, hook  and  ladder  companies,  and  provide  them  with  engines  and 
all  apparatus  for  extinguishment  of  fires,  ...  to  construct  and  furnish 
reservoirs,  wells,  cisterns,  aqueducts,  pumps  and  other  apparatus  for 
protection  against  fires,  and  to  establish  regulations  for  the  prevention 
and  extinguishment  of  fires."  Section  7,  pt.  9,  provides  as  follows : 
''The  city  council  shall  have  power  .  .  .  to  construct  and  maintain 
waterworks  and  make  all  needful  rules  and  regulations  concerning  the 
distribution  and  use  of  water  supplied  by  such  waterworks." 

1  Statement  of  facts  and  arguments  and  part  of  the  opinion  omitted.  The  above 
statement  is  substituted  for  tliat  of  the  Reporter.  An  action  by  tlie  Waterworks  Co. 
against  the  City  was  consolidated  with  the  taxpayers'  action.  —  Ed. 


446  HURON  WATERWORKS  CO.  V.    HURON. 

The  waterworks  of  said  city,  as  found  by  the  court,  were  constructed 
and  used  by  said  city  of  Huron  for  protection  against  fire  and  for 
domestic  purposes,  and  it  had  been  so  maintained  and  used  for  a  num- 
ber of  years  prior  to  said  alleged  sale.  They  were  constructed  by  the 
corporation  and  at  the  expense  of  the  same.  No  express  power  to  sell 
or  convey  said  property  has  been  conferred  upon  the  mayor  and  com- 
mon council  of  said  city,  nor  upon  the  corporation  itself,  unless  such 
power  is  included  in  the  powers  conferred  upon  the  city  by  section  1 , 
which,  as  we  have  seen,  provides  "  that  the  city  of  Huron  .  .  .  shall 
have  power  ...  to  purchase,  hold,  lease,  transfer  and  convey  real  and 
personal  property  for  the  use  of  the  citj',  .  .  .  and  to  exercise  all  the 
rights  and  privileges  pertaining  to  a  municipal  corporation."  The 
counsel  for  the  respondents  concedes  that  there  is  a  class  of  property 
owned  by  a  city  that  the  common  council  of  a  city  do  not  possess  the 
power  to  sell,  and  he  admits  that  public  parks,  squares,  commons, 
cemeteries,  etc.,  come  within  this  class;  but  he  insists  that  the  water- 
works of  a  city,  though  constructed  by  the  city  at  the  expense  of  the 
corporation,  and  used  for  protection  against  fire,  and  for  the  purposes 
of  supplying  pure  and  wholesome  water  to  the  citizens,  do  not  belong 
to  this  class.  It  is  necessary,  therefore,  to  determine  the  nature  and 
character  of  waterworks  properly  held  by  a  city.  The  grounds  upon 
which  municipal  corporations  are  denied  the  power  to  sell  and  convey 
the  class  of  property  above  referred  to  are  that  such  property  is  held 
by  the  corporation  for  public  use,  and  is  therefore  charged  with  a  pub- 
lic trust  of  which  the  corporation  cannot  divest  itself,  except  by  the 
express  authority  of  the  lawmaking  power  of  the  state. 

The  duties  imposed  upon  municipal  corporations  for  governmental 
purposes  purely  need  not  be  considered,  as  it  cannot  be  claimed  that 
the  exercise  of  the  power  to  create  and  maintain  city  waterworks  is 
strictly  a  governmental  purpose,  so  far  as  it  relates  to  the  state  at 
large.  Neither  are  public  squares,  parks,  wharves,  cemeteries,  landing 
places,  fire  apparatus,  etc.,  held  for  governmental  purposes,  in  the 
sense  that  they  relate  to  the  general  public  of  the  state ;  but  they  are 
governmental  in  the  sense  that  they  exist  for  public  use,  — that  is,  for 
that  portion  of  the  public  embraced  within  the  limits  of  the  city.  This 
distinction  is  well  stated  by  Judge  Dillon  in  his  work  on  Municipal 
Corporations.  That  learned  author  says:  "  As  respects  the  usual  and 
ordinary  legislative  and  governmental  powers  conferred  upon  a  muni- 
cipality, the  better  to  enable  it  to  aid  the  state  in  properly  governing 
that  portion  of  its  people  residing  within  the  municipality,  such  powers 
are  in  their  very  nature  public,  although  embodied  id  a  charter,  and 
not  conferred  by  laws  general  in  their  nature  and  applicable  to  the 
entire  state.  But  powers  or  franchises  of  an  exceptional  or  extraordi- 
nary or  noumunicipal  nature  may  be,  and  sometimes  are,  conferred 
upon  municipalities,  such  as  are  frequently  conferred  upon  individuals 
or  private  corporations.  Thus,  for  example,  a  city  may  be  expressly 
authorized  in  its  discretion  to  erect  a  public  wharf,  and  charge  tolls 


HURON  WATERWORKS  CO.  V.   HURON.  447 

for  its  use,  or  to  supply  its  inhabitants  with  water  or  gas,  charging 
them  therefor  and  making  a  profit  thereby.  In  one  sense  such  powers 
are  public  in  their  nature,  because  conferred  for  the  public  advantage. 
In  another  sense,  they  may  be  considered  private,  because  they  ax-e 
such  as  may  be,  and  often  are,  conferred  upon  individuals  and  private 
corporations,  and  result  in  a  special  advantage  or  benefit  to  the  muni- 
cipality as  distinct  from  the  public  at  large.  In  this  limited  sense,  and 
as  forming  a  basis  for  the  implied  civil  liability  for  damages  caused  by 
the  negligent  execution  of  such  powers,  it  may  be  said  that  a  munici- 
pality has  a  private  as  well  as  a  public  character.  And  so,  as  here- 
after shown,  a  municipality  may  have  property  rights  which  are  so  far 
private  in  their  nature  that  they  are  not  held  at  the  pleasure  of  the 
legislature."  1  Dill.  Muu.  Corp.  §  27.  While  parks,  squares,  wharves, 
landing  places,  fire  apparatus,  etc.,  are  not  absolutely  necessary,  to 
enable  a  municipal  corporation  to  perform  its  strictly  governmental 
duties,  so  far  as  they  relate  to  the  state  at  large,  they  are  so  far  held 
for  governmental  purposes  that  they  cannot  be  appropriated  to  any 
other  use  without  special  legislation.  Mr.  Chief  Justice  Waite,  in 
speaking  of  this  class  of  city  property  in  Meriweather  v.  Garrett,  102 
U.  S.  473,  saysj  "  (1)  Property  held  for  public  uses,  such  as  public 
buildings,  streets,  squares,  parks,  promenades,  wharves,  landing  places, 
fire  engines,  hose  and  hose  carriages,  engine  houses,  engineering  in- 
struments, and  generally  everything  held  for  governmental  purposes, 
cannot  be  subjected  to  the  payment  of  the  debts  of  the  city.  Its  pub- 
lic character  forbids  such  an  appropriation."  And  Mr  Justice  Field, 
in  the  same  case  (page  513)  says :  ''  What,  then,  is  the  property  of  a 
municipal  corporation,  which,  upon  its  dissolution,  a  court  of  equity 
will  lay  hold  of  and  apply  to  the  payment  of  its  debts  ?  We  answer, 
first,  that  it  is  not  property  held  by  the  corporation  in  trust  for  a  pri- 
vate charity,  for  in  such  property  the  corporation  possesses  no  interest 
for  its  own  uses;  and,  secondly,  that  it  is  not  properly  held  in  trust 
for  the  public,  for  of  such  property  the  corporation  is  the  mere  agent 
of  the  state.  In  its  streets,  wharves,  cemeteries,  hospitals,  court- 
houses and  other  public  buildings,  the  corporation  has  no  proprietary 
rights  distinct  from  the  trust  for  the  public.  It  holds  them  for  public 
use,  and  to  no  other  use  can  they  be  appropriated  without  special  leg- 
islative sanction.  It  would  be  a  perversion  of  that  trust  to  apply  them 
to  other  uses." 

It  is  difficult  to  perceive  upon  what  principle  a  distinction  can  be 
made  between  the  waterworks  of  a  city,  constructed  at  the  expense  of 
the  corporation  and  used  to  supply  water  for  fire  purposes,  domestic 
use,  and  other  city  purposes,  and  public  parks,  squares,  fire  apparatus, 
public  buildings,  etc.,  used  for  public  purposes,  and  the  courts  in  the 
latter  decisions  seem  to  make  no  such  distinction.  Judge  Dillon,  in 
his  work  above  referred  to,  says:  "In  some  of  the  states  it  is  held  that 
the  private  property  of  municipal  corporations  —  that  is,  such  as  they 
own  for  profit,  and  charged  with  no  public  trusts  or  uses  —  may  be 


448  HURON  WATERWORKS  CO.  V.    HURON. 

sold  on  execution  against  them.  .  .  .  On  principle,  in  the  absence  of 
statutable  provision,  or  legislative  policy  in  the  particular  state,  it 
would  seem  to  be  a  sound  view  to  hold  that  the  right  to  contract  and 
the  power  to  be  sued  give  to  the  creditor  a  right  to  recover  judgment, 
that  judgments  should  be  enforceable  by  execution  against  the  strictly 
private  property  of  the  corporation,  but  not  against  any  property 
owned  or  used  by  the  corporation  for  public  purposes,  such  as  build- 
ings, hospitals,  and  cemeteries,  fire  engines  and  apparatus,  waterworks, 
and  the  like;  and  that  judgments  should  not  be  deemed  liens  upon 
real  property,  except  when  it  may  be  taken  in  execution."  Dill.  Mun. 
Corp.  sec.  576.  It  will  be  noticed  that  Judge  Dillon  places  water- 
works in  the  same  class  with  public  buildings,  hospitals,  cemeteries,  etc., 
and  in  this  the  learned  author  is  fully  supported  by  the  very  able  deci- 
sion of  the  Supreme  Court  of  the  United  States  in  Neiv  Orleans  v.  Mor- 
ris^ 105  U.  S.  600.  Mr.  Justice  Miller,  speaking  for  the  court,  says: 
"  The  learned  counsel,  in  tlie  oral  argument  and  in  the  brief,  substan- 
tially concedes  that  the  waterworks  themselves,  in  the  hands  of  the 
city,  were  not  liable  to  be  sold  for  the  debts  of  the  city.  And,  if  no 
such  concession  were  made,  we  think  it  quite  clear  that  these  works 
were  of  a  character  which,  like  the  wharves  owned  by  the  city,  were  of 
such  public  utility  and  necessity  that  they  were  held  in  trust  for  the 
use  of  the  citizens.  In  this  respect  they  were  the  same  as  public  parks 
and  buildings,  and  were  not  liable  to  sale  under  execution  for  ordinary 
debts  against  the  city.  ...  In  the  next  place,  the  city  was  not  situ- 
ated, as  regards  this  property,  as  a  private  person  would  be  in  the  pur- 
chase and  acquisition  of  ordinary  property.  The  city  could  not  have 
sold  this  property  as  the  law  stood.  It  could  not  have  put  it  into  a 
joint  stock  company  without  the  aid  of  a  new  law.  The  legislature,  in 
authorizing  the  change  in  the  form  of  the  ownership  of  the  waterworks, 
could,  since  it  injured  nobody  and  invaded  no  one's  rights,  say,  as  to 
the  city,  whether  it  be  called  new  property  or  not,  that  such  ownership 
could  continue  exempt  from  execution.  As  the  city  was  using  no 
means  in  acquiring  this  stock  which  could  have  been  appropriated  un- 
der any  circumstances  to  the  payment  of  the  debts  of  the  appellees, 
the  legislature  impaired  no  obligation  of  the  city  in  declaring  the  stock 
thus  acquired  exempt  from  liability  for  debts."  This  decision  is  im- 
portant, not  only  as  being  made  by  the  highest  court  of  the  nation, 
but  as  being  the  unanimous  opinion  of  that  court  upon  the  question, 
and  made  subsequently  to  the  decision  in  the  Meriweather  case,  above 
cited.  It  is  clear  and  to  the  point  that  the  waterworks  of  a  city  belong 
to  tlie  same  class  of  property  as  "wharves,  parks,"  etc.,  and  holds 
distinctly  that  the  waterworks  property  of  a  city  cannot  be  sold,  except 
by  authority  of  the  legislature,  and  the  court  says  :  "  We  think  it  quite 
clear  that  these  works  were  of  a  character  which,  like  the  wharves 
owned  by  the  city,  were  of  such  public  utility  that  they  were  held  in 
trust  for  the  use  of  the  citizens."  The  same  view  is  taken  by  the  Court 
of  Appeals  in  the  state  of  New  York  in  the  case  of  City  of  Eochester  v. 


HURON  WATERWORKS  CO.  V.    HURON.  449 

Toicn  of  Rush,  80  N.  Y.  302.  In  that  case  the  court  says  :  "  The  ar- 
gument of  the  appeUant  that  the  property  in  question  would  properly 
be  exempt  from  a  city  tax,  as  it  was  procured  by  a  tax  upon  property 
within  the  city,  but  not  from  a  county  tax,  but  the  people  of  the  county 
were  not  taxed  to  procure  it,  would  apply  with  equal  force  to  the  city 
hall  and  engine  houses  and  machines  and  equipments  which  make  those 
houses  necessary,  and,  if  sound,  would  subject  them  to  the  hazard  of 
sale  under  a  treasurer's  warrant  for  the  enforcement  of  a  county  tax. 
I  am  unable  to  perceive  that  in  any  sense  the  waterworks  can  be  re- 
garded as  the  private  property  of  the  city,  as  distinguished  from  prop- 
erty held  by  it  for  public  use.  These  considerations  lead  to  the 
opinion  that  the  property  was  not  taxable,  and  that  the  proceedings  on 
the  part  of  the  assessors  of  the  town  of  Rush  in  regard  thereto  cannot 
be  sustained." 

The  supreme  court  of  Connecticut  in  the  well  considered  case  of 
Town  of  West  Hartford  v.  J3oard  of  Water  Com'rs.,  44  Conn.  360, 
lays  down  the  same  doctrine.  •  In  that  case,  the  court  says :  "  The  in- 
troduction of  a  supply  of  water  for  the  preservation  of  the  health  of 
its  inhabitants  by  the  cit}'  of  Hartford  is  unquestionably  now  to  be  ac- 
cepted as  an  undertaking  for  the  public  good,  in  the  judicial  sense  of 
that  term  ;  not  indeed,  as  the  discharge  of  one  of  the  few  governmen- 
tal duties  imposed  upon  it,  but  as  ranking  next  in  order.  For  this 
purpose  the  legislature  invested  the  city  with  a  portion  of  its  sover- 
eighty,  and  authorized  it  to  enter  within  the  territorial  limits  of  "West 
Hartford,  and  condemn  by  process  of  law  certain  lands  therein  for  the 
purpose  of  storing  water  for  its  own  inhabitants.  It  authorized  the 
assessment  of  a  tax  upon  property  within  the  city  of  Hartford  for 
money  wherewith  to  pay  for  this  land,  because  the  taking  and  holding 
was  for  the  public  good."  Having,  as  we  think,  established  the  prop- 
osition, that  the  waterworks  of  a  city,  when  constructed  and  owned  by 
the  city,  are  to  be  regarded  the  same  as  other  city  property  held  for 
public  use,  and  therefore  charged  and  clothed  with  a  public  trust,  it 
would  seem  to  follow  that  such  property  cannot  be  sold  and  conveyed 
by  the  mayor  and  common  council  of  the  city,  unless  under  special  au- 
thority conferred  upon  them  to  so  sell  and  convey  the  same,  by  the 
legislative  power  of  the  state.  Judge  Dillon  says  in  his  work  before 
referred  to,  that  they  (municipal  corporations)  cannot  dispose  of  prop- 
erty of  a  public  nature,  in  violation  of  the  trusts  upon  which  it  is  held, 
and  they  cannot,  except  under  valid  legislative  authority,  dispose  of 
the  public  squares,  streets,  or  commons.  See  2  Dill.  Mun.  Corp.  sec. 
575,  and  cases  cited.  In  the  recent  case  of  Roberts  v.  City  of  Louis- 
ville (decided  in  1891)  17  S.  W.  216,  the  same  doctrine  was  laid  doAvn 
by  the  supreme  court  of  Kentucky  as  to  the  wharves  held  by  the  city  of 
Louisville.  In  that  case  the  court  says  :  "  The  power  of  a  municipal 
corporation  to  acquire  land  for  the  purpose  of  erecting  wharves  thereon, 
and  to  charge  wharfage,  is  not  a  necessary  incident  of  its  charter,  but 
must,  like  all  its  other  powers,  be  derived  directly  from  the  legislature, 


45Q  HURON   WATERWOKKS   €0.   V.   HURON. 

of  course  to  be  exercised  within  the  limits  and  upon  conditions  of  the 
grant.  Dill.  Mun.  Corp.  sec.  110.  And,  looking  to  the  nature  and 
purpose  of  such  special  grant,  it  must  be  regarded  as  a  trust,  involving 
duties  and  obligations  to  the  public  and  individuals  which  cannot  be 
ignored  or  shifted ;  for  the  power  to  acquire  implies  the  duty  of  the 
municipality,  through  its  governing  head,  to  maintain  and  preserve 
wharf  property  for  the  benefit  of  the  public,  without  discrimination  or 
unreasonable  charges  for  individual  use.  In  every  instance,  so  far  as 
we  have  observed,  wharf  property  of  the  city  of  Louisville  has  been 
acfiuired  under  act  of  the  legislature,  and  paid  for  by  taxation  ;  and  in 
no  case  is  there  evidence  of  legislative  intention  it  should  be  held  other- 
wise than  in  trust  for  use  of  the  public,  and  in  aid  of  trade  and  com- 
merce. The  wharf  property  being  so  held,  the  city  of  Louisville  cannot 
transfer  its  title  or  possession,  nor,  according  to  a  plain  and  well-set- 
tled principle,  can  the  general  council,  which  is  by  statute  invested  with 
power  of  control,  and  burdened  with  the  duty  of  maintaining,  preserv- 
ing and  operating  the  wharves,  either  delegate  the  power  or  disable 
itself  from  performing  the  duties."  In  that  case  the  judgment  of  the 
court  below  dismissing  the  bill  for  an  injunction  was  reversed,  the  court, 
in  effect,  holding  that  an  injunction  enjoining  the  mayor  and  common 
council  from  making  the  sale  should  be  granted.  In  the  case  of  Smith 
V.  Mayor,  etc.^  of  Nashville,  12  8.  W.  924,  also  a  late  decision  made 
in  1890,  the  Supreme  Court  of  Tennessee  says:  "It  is  seen  at  once 
that  the  waterworks  are  a  corporate  property.  That  is  not  denied. 
The  debate  is  with  respect  to  the  nature  of  the  use.  As  to  that,  for 
the  sake  of  convenience,  we  divide  all  the  purposes  for  which  the  city 
furnishes  water  into  three  classes  :  (1)  To  extinguish  fires  and  sprink- 
ling the  streets ;  (2)  to  supply  citizens  of  the  city ;  (3)  to  supply  per- 
sons and  factories  adjacent  to  but  beyond  the  corporate  limits.  If  the 
business  were  confined  to  the  first  class,  there  would  be  no  ground  to 
base  a  decision  on,  so  clearly  would  the  use  be  exclusively  for  public 
advantage.  We  think  there  can  be  but  little  more  doubt  about  the 
second  class,  especially  in  view  of  certain  words  in  the  city  charter,  to 
which  we  will  advert  presently.  .  .  .  Having  accepted  the  charter,  and 
undertaken  to  exercise  this  authority  in  the  manner  detailed  by  the 
witness,  it  cannot  be  held  that  the  city  in  doing  so  is  engaging  in  a 
private  enterprise,  or  performing  a  municipal  function  for  a  private 
end.  It  is  the  use  of  corporate  property  for  corporate  purposes,  in 
the  sense  of  the  revenue  law  of  1877.  It  can  make  no  difference 
whether  the  water  be  furnished  the  inhabitants  as  a  gratuity  or  for  a 
recompense,  the  sum  raised  in  the  latter  case  being  reasonable,  and 
applied  for  original  purposes." 

From  this  examination  of  the  authorities,  we  conclude  that  there  is 
no  distinction  between  the  nature  of  waterworks  property  owned  and 
held  by  the  cit}^  and  public  parks,  squares,  wharves,  quarries,  hospitals, 
cemeteries,  city  halls,  courthouses,  fire  engines,  and  apparatus,  and 
other  property  owned  and  held  by  the  city  for  public  use.     All  such 


DE   MOTTE   V.   VALPARAISO.  451 

property  is  held  by  the  municipality  as  a  trustee  in  trust  for  tlie  use 
and  benefit  of  the  citizens  of  the  municipality,  and  it  cannot  be  sold  or 
disposed  of  by  the  common  council  of  the  city,  except  under  the  au- 
thority of  the  state  legislature.  Such  property,  as  before  stated,  is 
private  property,  in  the  sense  that  the  municipality  cannot  be  deprived 
of  it  without  compensation,  no  more  than  can  a  private  corporation 
be  deprived  of  its  property  by  the  law-making  power.  But  such  prop- 
erty is  so  owned  and  held  by  the  municipality  as  the  trustee  of  the  cit- 
izens of  the  municipality,  for  the  use  and  benefit  of  such  citizens.  It 
has  been  acquired  by  the  corporation  at  the  expense  of  the  taxpayers 
of  the  city,  for  their  use  and  benefit,  and  the  law  will  not  permit  the 
corporation  to  divest  itself  of  the  trust,  nor  to  deprive  the  citizens  of 
their  just  rights  as  beneficiaries  in  the  same. 


DE  MOTTE  V.  VALPARAISO. 
1903.     161  Ind.  319. 

DowLiNG,  J.  The  appellants,  who  are  described  as  residents  and 
taxpayers  of  the  city  of  Valparaiso,  brought  this  suit  to  enjoin  a 
threatened  sale  and  transfer  by  said  city  of  a  right  to  purchase  a 
system  of  water-works  owned  by  a  private  company,  and  constructed 
and  used  in  the  streets,  alleys,  and  public  grounds  of  said  city,  reserved 
to  and  held  by  said  city  in  and  under  a  contract  between  said  city  and 
George  P.  Smith  and  others  made  February  16,  1885.  The  part  of 
said  contract  which  is  material  here  is  as  follows  :  "At  any  time  after 
the  expiration  of  fifteen  years  from  the  completion  of  said  water- works 
the  city  shall  have  the  right  to  purchase  the  same  by  giving  the  owners 
thereof  one  year's  notice  in  writing,  and  in  case  of  purchase  the  city 
shall  pay  a  reasonable  value  for  the  same  which  shall  be  ascertained 
by  three  disinterested  hydraulic  engineers,  one  to  be  chosen  by  the  city, 
one  by  the  owners  of  the  water-works,  and  the  third  selected  by  the 
two  thus  chosen."  The  works  were  completed  December  31,  1885, 
and  afterwards  Smith  and  his  associates  sold  and  transferred  the  same, 
with  all  rights,  franchises,  and  privileges  created  by  the  said  ordinance, 
to  the  Valparaiso  City  Water-Works,  which  has  ever  since  owned  and 
operated  them.  The  city  has  a  population  of  more  than  5,000  inhabit- 
ants, and  less  than  7,000,  and  is  organized  under  the  general  laws  of 
this  State  for  the  incorporation  of  cities.  It  is  indebted  beyond  two 
per  centum  of  the  valuation  of  its  taxable  property,  its  indebtedness  being 
about  $95,000,  and  the  appraised  value  of  its  taxable  property  for  the 
year  1902  being  $2,300,000.  Its  current  revenues  of  late  years  have 
been  insufiicient  to  pay  its  general  expenses  and  the  interest  on  its  debts. 
It  is  averred  in  the  answer,  among  other  things,  that  the  said  water- 


452  DE   MOTTE   V.    VALPARAISO. 

works  had  never  been  owned  by  said  city,  and  bad  never  been  dedicated 
to  any  public  use. 

A  demurrer  to  the  answer  was  overruled,  and  this  decision  is  as- 
signed for  error. 

The  question  presented  is  whether  the  city  has  thp  power  to  sell  and 
transfer  its  right  to  purchase  said  water-works,  so  reserved  in  the 
ordinance. 

It  is  contenddd  by  counsel  for  appellees  that  such  reserved  right  is 
held  in  trust  by  the  city  for  public  purposes  in  the  same  manner  and 
subject  to  the  same  restrictions  upon  the  power  of  the  city  to  sell  and 
convey  it  as  the  water-works  themselves  would  be  held  if  owned 
and  operated  by  the  city.  Lake  County  Water  &  Light  Co.  v.  Walsh, 
160  Ind.  32;  Pittsburg,  etc.,  R.  Co.  v.  Town  of  Croion  Point,  146  Ind. 
421 ;  Trustees,  etc.,  v.  Mayor,  etc.,  33  N.  J.  L.  13,  97  Am.  Dec.  696. 

There  is,  in  our  opinion,  an  obvious  legal  distinction  between  a  right 
of  a  city  to  purchase  property  for  a  public  use,  and  the  ownership  of 
property  actually  dedicated  to  and  employed  for  public  purposes.  It 
is  not  the  fact  that  property  may  be  devoted  to  public  use  by  the  city 
at  some  future  day  which  constitutes  the  city  a  trustee  for  that  use,  but 
it  is  the  circumstance  that  the  property  is  actually  so  used.  The  city 
of  Valparaiso  is  not  the  owner  of  the  water-works,  and  may  never  ac- 
quire the  title  thereto,  either  because  it  has  not  the  means  with  which 
to  purchase  the  works,  or  for  the  reason  that  such  purchase  may  not 
be  deemed  expedient.  The  property  is  now  held  by  a  private  corpo- 
ration, and  will  continue  to  be  so  held  unless  the  city  shall  become 
financially  able  to  buy  it,  and  its  acquisition  shall  be  decided  to  be  for 
the  advantage  of  the  city.  If  the  city  remains  unable  to  purchase  for 
lack  of  funds,  or  if  it  shall  not  be  thought  desirable  to  exercise  the 
right  of  purchase,  the  service  to  the  public  rendered  by  the  Valparaiso 
City  Water-Works  will  continue  to  be  of  the  same  nature,  extent,  and 
efficacy,  and  upon  the  some  terms,  whether  the  city  retains  its  right  to 
purchase  the  works,  or  disposes  of  that  right  by  a  sale  and  transfer. 

In  City  of  Ft.  Wayne  v.  Lake  Shore,  etc.,  R.  Co.,  132  Ind.  558,  18 
L.  R.  A.  367,  32  Am.  St.  277,  this  court  held  that  land  purchased  by 
tlie  city  of  Ft.  Wayne  for  the  purposes  of  a  public  park,  but  never  dedi- 
cated to  such  use,  might  be  sold  by  the  city  under  its  general  power  to 
sell  and  convey  property,  real  and  personal,  owned  by  it  as  a  munici- 
pal corporation,  although  it  could  not  do  so  if  the  land  had  been  applied 
to  the  purposes  for  which  it  was  bought,  and  was  so  used.  We  think 
this  principle  applies  to  the  present  case.  As  the  right  to  purchase  has 
not  been  exercised,  and  the  city  has  not  impressed  its  possible  interest 
in  the  property  with  a  public  use,  it  may  sell  and  transfer  such  right 
under  its  general  power  to  sell  and  convey  property  which  has  not  been 
dedicated  to  a  public  use. 

Judgment  affirmed. 

Gillett,  J.,  did  not  participate  in  this  decision. 


BAILY   V.    PHILADELPHIA.  453 


BAILY  V.  PHILADELPHIA. 

1898.     184  Pa.  694. 

Bill  in  equity  to  declare  illegal  and  void  a  lease  of  the  Philadel- 
phia Gas  Works.^ 

Mitchell,  J.  The  gas  works  are  the  property  of  the  city  of  Phila- 
delphia, not  as  a  municipality,  but  as  a  business  corporation.  How- 
ever much  the  idea  that  the  city  is  not  required  by  its  municipal  duty 
to  supply  its  citizens  with  light  in  the  streets  and  public  places,  may 
seem  to  fall  below  the  modern  conception  of  a  city,  it  is  beyond  ques- 
tion on  settled  legal  principles,  that  in  the  performance  of  that  func- 
tion the  city  acts  under  authority  merely  and  not  under  municipal 
obligation.  This  was  the  rule  of  the  common  law,  and  no  statute  in 
reference  to  the  city  of  Philadelphia  has  altered  it.  Hence  the  city 
may  change  its  mode  of  action,  or  cease  to  act  altogether,  in  its  dis- 
cretion, and  the  discretion  is  purely  legislative.  The  courts  have  no 
power  to  interfere  unless  the  proposed  action  contravenes  some  ex- 
press statute,  or  violates  some  binding  contract.  These  principles  are 
elementary  and  need  not  be  enlarged  upon,  since  they  are  conceded 
by  the  learned  counsel  for  appellants,  and  the  corollary  admitted  that 
the  lease  now  sought  to  be  enjoined  would  have  been  clearly  within  the 
power  of  the  city  prior  to  the  Act  of  June  1,  1885,  P.  L.  37,  commonly 
known  as  the  Bullitt  Bill. 

The  argument  of  the  appellants  is  arranged  under  three  heads,  and 
may  be  conveniently  considered  in  that  order. 

First,  that  the  ordinance  for  the  lease  of  the  gas  works  is  an  inter- 
ference with  the  executive  functions  of  the  department  of  public 
works,  and  therefore  within  the  prohibition  of  the  act  of  June  1,  1885. 
Of  that  act  this  Court  has  already  declared  that  "the  subject  with 
which  it  deals  is  the  administrative  government  of  cities  of  the  first 
class,  and  its  manifest  purpose  was  to  reform  existing  abuses  in  the 
executive  department  of  the  only  city  of  that  class,"  Com.  ex  rel.  v. 
DeCamp,  177  Pa.  112.  The  particular  provisions  of  the  act  which  are 
relied  on  by  the  appellants  are  art.  I.,  sec.  1,  "There  shall  be  the 
following  executive  departments  :  .  .  .  Department  of  Public  Works  ;  " 
art.  IV.,  sec.  1,  "The  Department  of  Public  Works  shall  be  under  the 
charge  of  one  director  who  shall  be  the  head  thereof.  Gas  works 
owned  and  controlled  by  the  city,  the  supply  and  distribution  of  gas 
...  the  lighting  of  streets,  alleys,  and  highways  .  .  .  shall  be  under 
the  direction,  control,  and  administration  of  the  Department  of  Public 
Works  ;  "  and  art.  XVI.,  "  Councils  shall  by  general  ordinances  pro- 
vide for  the  proper  and  efficient  conduct  of  the  affairs  of  the  city  by 

1  Statement  of  facts  and  arguments  omitted.  —  Ed. 


454  BAILY   V.    PHILADELPHIA. 

the  mayor  and  several  departments,  and  the  boards  thereof ;  but  they 
shall  not  pass  any  ordinances  directing  or  interfering  with  the  exercise  of 
the  executive  functions  of  the  mayor  and  departments,  boards  or  heads 
or  officers  thereof."  These  provisions  do  not  take  away  nor  in  any  degree 
lessen  any  municipal  authority  previously  lodged  in  the  city,  still  less 
any  merely  business  corporate  power.  They  merely  regulate  the  oper- 
ation of  its  executive  and  legislative  functions  as  to  such  public  prop- 
erty of  the  enumerated  classes  as  the.  city  may  at  any  time  have.  The 
prohibition  to  councils  in  article  16  is  against  interference  with  "  the 
exercise  of  the  executive  functions  "  of  the  departments.  The  lease  or 
sale  of  the  gas  works  is  not  an  executive  function.  If  it  was  it  would 
belong  to  the  director  of  public  works  as  the  head  of  the  department. 
But  no  one  would  contend  that  the  director  has  any  power  to  make  a 
sale  or  such  a  lease.  That  is  a  parting  with  the  title  and  possession 
of  the  city,  which  can  only  be  done  by  a  legislative  act.  As  a  legisla- 
tive act  it  is  within  the  clear  power  of  the  cit}-.  The  right  to  change 
the  property  which  is  the  instrument  through  which  the  city  exercises 
its  powers,  is  inherent  in  its  ownership,  whether  municipal  or  merely 
corporate,  unless  prohibited  by  contract  or  by  the  terms  of  a  trust 
upon  which  it  was  acquired.  But  to  avoid  all  doubts  the  right  of 
alienation  is  given  in  express  words  in  the  charter  of  1789,  all  the 
powers  granted  in  which  were  preserved  by  the  consolidation  act  (Act 
of  February  2,  1854,  sec.  6.  P.  L.  25)  and  which  appears  to  be  still  in 
force :  Com.  v.  Walton,  182  Pa.  373.  And  the  right  is  not  taken 
away  by  the  act  of  1885,  which,  as  already  said,  merely  regulates  the 
mode  of  exercise  of  executive,  and  incidentally  of  legislative,  func- 
tions without  changing  the  rights  which  appertain  to  those  functions. 

But  it  is  urged  that  although  the  city  may  sell  and  change  the 
specific  property,  it  cannot  abdicate  the  function,  and  must  therefore 
substitute  other  property  through  which  its  control  and  operation  of 
the  franchise  may  be  continued,  and  the  analogy  is  relied  on  of  a 
trustee  wnth  a  power  to  sell,  who  may  by  virtue  thereof  change  the 
subject-matter  but  cannot  destroy  the  trust.  This  brings  us  back 
again  to  the  preliminary  question  on  which  the  whole  case  rests, 
whether  supplying  the  public  places  and  private  citizens  with  gas  for 
lighting  purposes  is  a  strictly  municipal  function,  or  merely  a  power 
conferred  on  the  city  as  a  corporation.  If  the  former,  it  is  a  duty  as 
well  as  a  power,  and  cannot  be  abandoned ;  if  the  latter,  it  is  an  au- 
thority only  and  may  be  exercised  or  not  at  the  city's  option.  Al- 
though the  appellants  start  out  with  the  concession  that  the  lease  in 
question  would  have  been  within  the  city's  powers  prior  to  the  act  of 
1885,  yet  the  elaborate  and  ingenious  argument  for  them  rests  upon 
the  contention  that  the  lighting  of  the  city,  at  least  since  that  act,  is  a 
municipal  duty,  and  though  presented  in  different  aspects  and  from 
different  points  of  view,  the  argument  constantly  comes  back  to  this 
contention,  for  without  it  there  is  confessedly  no  ground  for  the  case 
to  rest  upon.     But  for  reasons  already  stated,  we  are  of  opinion  that 


BAILY   V.    PHILADELPHIA  455 

the  tict  of  1885  marie  no  change  in  the  city's  municipal  powers,  either 
iuiaereut  or  statutory,  but  merely  regulated  their  exercise  so  far  as  re- 
lated to  executive  officers,  and  incidentally  to  such  purpose  restrained 
what  had  become  legislative  usurpation.  Under  that  act,  so  long  as 
the  city  owns  and  operates  the  gas  works,  it  must  do  so  through  the 
department  of  public  works,  but  there  is  no  compulsion  upon  the  city 
to  continue  the  manufacture  and  sale  of  gas  at  all,  or  to  do  it  through 
its  own  officers,  if  in  its  legislative  judgment  it  is  no  longer  expedient 
to  do  so. 

The  second  proposition  of  the  appellants  is  that  the  ordinance 
assumes  in  respect  to  the  public  lighting  to  delegate  a  public  legisla- 
tive power,  and  in  resi)ect  to  the  private  lighting  to  confer  a  monopoly 
on  the  srantee ;  and  in  both  cases  to  bind  the  discretion  of  councils 
for  a  long  term  of  years.  It  is  manifest  that  this  proposition  in  the 
use  of  the  phrase  "  public  legislative  power"  comes  back,  as  already 
indicated,  to  the  contention  that  public  lighting  is  a  municipal  duty. 
It  is  true  that  it  is  a  legislative  power,  in  the  sense  that  it  is  the  exer- 
cise of  the  will  of  the  owner  with  respect  to  ownership«of  the  property. 
If  such  ownership  was  coupled  with  a  municipal  duty  such  duty  could 
not  be  escaped  by  lease  or  other  form  of  delegation.  But  the  gas 
works,  as  already  discussed,  are  held  by  the  city  as  a  business  corpo- 
ration. If  the  use  of  gas  should  be  so  far  superseded  as  to  make  its 
manufacture  and  sale  unprofitable,  there  is  no  compulsion  on  the  city 
to  continue  it  or  to  embark  in  any  new  venture  for  the  supply  of  a 
different  Jight.  And  if  the  management  and  operation  of  the  works 
can  be  more  profitably  or  more  conveniently  carried  on  by  a  lessee, 
instead  of  by  the  city's  own  immediate  servants,  the  citj^  in  making  a 
lease  is  determining  a  business  question  in  its  legislative  corporate 
capacity,  just  as  any  private  corporation  might  do,  but  is  not  delegat- 
ing any  municipal  power,  legislative  or  other,  which  involves  municipal 
duty. 

In  regard  to  the  conferring  of  a  monopoly,  the  appellants  cite  the 
provision  in  the  lease  that  "  the  city  of  Philadelphia  agrees  that  dur- 
ing the  term  of  this  contract  it  will  do  nothing  by  ordinance  or  other- 
wise which  will  in  any  way  interfere  with,  or  limit,  restrict  or  imperil 
this  exclusive  right  hereby  vested  in  the  said  United  Gas  Improvement 
Company,  its  successors  or  assigns,"  and  claim  that  this  creates  a 
monopoly^  which  is  void  on  the  ground  of  public  policy.  To  this  ob- 
jection it  would  be  a  sufficient  answer  that,  as  already  held,  the  city 
in  this  matter  is  acting  in  its  business,  not  its  governmental,  capacity, 
and  the  owner  of  business  property,  even  though  a  municipal  corpora- 
tion, may  in  dealing  with  it  make  such  terms  as  in  its  discretion  it 
deems  best  for  its  interest.  When  the  owner  of  a  business  sells  it 
with  its  good-will,  etc. ,  he  may  agree  as  part  of  the  consideration  to 
the  purchaser,  not  to  go  into  the  same  business  again  as  a  rival,  within 
an  agreed  territory  or  for  an  agreed  time.  The  city  of  Philadelplii;i 
selling  its  gas-making  plant  and  good-will  may  do  the  same  thing. 


456  BAILY   V.    PHILADELPHIA. 

But  in  the  provision  of  the  lease  now  under  consideration  the  city  does 
rot  assume  to  grant  any  franchise.  It  could  not  do  so  if  it  would. 
"What  the  city  does  is  to  covenant  that  it  will  do  no  act  in  the  deroga- 
tion of  the  right  of  the  lessee  under  the  grant  to  operate  the  gas  works 
and  supply  the  citizens  with  light  therefrom.  The  franchise  of  the 
lessee  to  furnish  light  is  not  derived  from  the  city  but  from  the  legis- 
lature ;  whether  it  is  exclusive  or  not  at  present,  or  shall  be  exclusive 
or  not  in  the  future,  does  not  and  will  not  depend  on  the  city,  but  on 
the  legislature.  All  that  the  city  does  is  to  agree  that  it  will  do  no  act 
itself  whereby  the  privileges  granted  by  it  to  the  lessee,  and  intended 
to  be  exclusive  so  far  as  it  is  concerned,  shall  be  limited  or  interfered 
with.  This  was  clearl}'  within  its  powers  in  dealing  with  its  business 
property.  Whether  the  legislature  may  hereafter  impose  upon  the  city  a 
municipal  duty  in  regard  to  lighting  which  may  conflict  with  its  present 
contract  is  a  question  we  need  not  consider  until  the  case  shall  arise 
with  proper  parties  in  interest  to  such  a  question. 

It  is  further  argued  that  the  lease  undertakes  to  bind  the  discretion 
of  councils  for  a  long  term  of  years.  This  again  comes  back  to  the 
contention  that  lighting  the  city  is  a  strictly  municipal  or  governmental 
function,  as  to  which  councils  cannot  bind  their  successors.  But  as 
already  held  the  city  is  acting  in  its  business  capacity  only,  and  the 
contract  binds  it  in  that  capacity.  All  C9ntracts  which  contemplate 
things  to  be  done  after  the  immediate  present  must,  to  that  extent, 
bind  and  limit  the  power  of  the  contracting  party.  This  principle  has 
already  been  adjudicated  in  its  application  to  the  city  of  Philadelphia 
and  the  gas  works  in  the  cases  of  the  Western  Saving  Fund  Society  v. 
PJtila.y  31  Pa.  175,  Same  v.  Same,  31  Pa.  185,  and  Wheeler  et  al.  v. 
Fhila.,  11  Pa.  338. 

The  last  proposition  of  the  appellants  is  that  the  ordinance  impairs 
the  obligation  of  the  city's  contract  with  certain  holders  of  its  bonds. 
This  was  the  ground  of  decision  in  Western  Saving  Fund  Society 
V.  Phila.,  supra.  But  the  cases  are  not  at  all  alike  in  the  facts.  In 
Saving  Fund  Society  v.  Phila.  the  ordinance  of  1841  distinctly  pledged 
the  revenues  of  the  gas  works  to  the  creditors  for  security  of  payment 
of  the  bonds,  and  provided  for  the  management  by  trustees  for  that 
purpose.  The  ordinance  of  1868,  under  which  Mr.  Campbell,  one  of 
the  complainants,  is  a  bondholder,  has  no  such  provision.  The  loan 
was  made  to  the  city,  and  upon  the  city's  general  credit,  without  any 
pledge  of  its  revenues  from  the  gas  works  or  any  other  specified  source. 
On  the  contrary  the  ordinance  gave  express  notice  in  section  4,  that 
the  terms  and  provisions  of  the  ordinance  of  1841  should  not  apply  in 
any  way  to  this  loan.  Section  3  of  the  ordinance  requires  the  reten- 
tion by  the  trustees  of  the  gas  works  of  a  certain  per  cent,  of  the 
amount  of  the  loan,  annually,  and  its  payment  into  the  city  treasury, 
whereupon  the  city  undertakes  to  apply  part  of  it  to  the  payment  of 
the  interest  on  the  loan  and  to  pay  the  other  part  into  the  sinking 
fund.     These  provisions  are  not  part  of  the  contract  between  the  city 


GUSHEE    V.   NEW   YORK.  457 

and  iue  loanholders,  but  are  terms  imposed  by  the  city  on  the  trustees 
of  the  gas  works  as  conditions  on  which  the  city  will  raise  the  money 
for  the  latter's  use.  Without  these  terms  the  city  would  have  had 
to  meet  the  bonds  at  their  maturity  out  of  general  taxation,  and 
could  not  have  looked  for  repayment  from  tlie  revenues  of  the  gas 
works  unless  at  the  option  of  the  trustees.  By  these  terms  the  city 
guarded  itself  from  this  risk,  and  secured  repayment  to  itself  from 
the  revenues  of  the  department  for  whose  use  it  had  borrowed  the 
mone}'.  But  the  requirements  of  this  section  were  for  the  protection 
of  the  city  only  and  involved  no  pledge  to  the  loanholders.  They 
loaned  on  the  general  credit  of  the  city,  and  perhaps  also  on  the  faith 
of  the  sinking  fund  pledged  for  the  payment  of  this  and  other  loans. 
But  there  is  no  averment  that  the  sinking  fund  has  not  been  kept  up 
by  appropriation  from  the  city  treasury  from  time  to  time  as  required 
by  law.  Without  such  averment  and  proof  it  does  not  appear  that 
any  obligation  of  the  loanholders  contract  has  been  impaired. 

None  of  the  grounds  on  which  the  court  is  asked  to  interfere  can  be 
sustained,  and  the  injunction  was  rightly  refused. 

Decree  affirmed  at  costs  of  appellants. 


GUSHEE  V.  NEW  YORK. 

1899.    42  App.  Div.  37. 

RuMSET,  J.^  On  the  bank  of  the  Hudson  river,  on  the  west  side  of 
the  city  of  New  York,  is  situated  Riverside  Park,  and  upon  an  emi- 
nence at  the  upper  end  of  that  park  stands  a  building  with  stables  and 
other  outbuildings,  which  has  been  fitted  for  a  place  of  rest  and  re- 
freshment for  persons  who  have  occasion  to  use  the  park.  For  some 
years,  and  certainly  as  far  back  as  1892,  the  department  of  parks  had 
granted  the  right  to  keep  a  restaurant  in  the  park  either  for  a  rental 
paid  monthly,  or  for  a  certain  portion  of  the  receipts.  In  the  month 
of  March,  1896,  the  person  who  had  been  in  possession  of  the  restau- 
rant left  it  for  some  reason,  and  an  agreement  was  made  between  the 
authorities  of  the  city  by  department  of  parks  on  the  one  hand  and 
the  plaintiff  here  on  the  other,  by  which  there  was  gi*anted  to  the  plain- 
tiff the  right  to  keep  this  restaurant.  That  grant  or  license  would,  by 
its  terms,  expire  on  the  1st  of  April,  1897.  On  the  24th  of  February, 
1897,  the  plaintiff  applied  for  a  renewal,  and  negotiations  to  that  end 
were  completed  between  the  department  of  parks  and  the  plaintiff  in 
the  month  of  November,  1897,  at  which  time  the«department  of  parks, 
claiming  to  act  for  the  city,  granted  to  the  plaintiff  the  privilege  of 
selling  refreshments  in  the  building  in  the  park  which  was  known  as 
"Claremont"  for  the  term  of  five  years  from  the  1st  day  of  April, 

1  Part  of  the  opinion  and  the  dissenting  opinion  of  Barrett,  J.,  are  omitted. — Ed. 


458  GUSHEE    V.   NEW   YORK. 

1897,  unless  the  agreement  be  sooner  revoked,  or  canceled  or  annulled, 
as  therein  provided.  The  plaintiff,  on  his  part,  agreed  to  enter  upon 
the  exercise  of  the  privilege  thereby  granted,  and  to  conduct  the  res- 
taurant in  a  style  and  manner  satisfactory  to  the  department  of  parks, 
and  under  such  restrictions,  rules  and  regulations  as  might  be  pre- 
scribed by  them. 

He  made  further  agreements  as  to  the  rates  of  charges  and  repairs 
and  other  matters  which  need  not  be  considered  here,  and  agreed  to 
pay  to  the  department  for  the  privilege  the  sum  of  $525  a  month. 
It  was  further  agreed  that  the  agreement  and  privilege  thereby  granted 
were  personal,  and  that  the  plaintiff  would  not  assign  the  same,  or  any 
part  thereof,  without  the  written  consent  of  the  department. 

The  plaintiff  made  a  further  stipulation  that  he  would  conform, 
and  require  all  persons  in  his  employ  to  conform,  to  all  rules,  regula- 
tions, requirements  and  ordinances  then  prescribed,  or  which  thereafter 
might  be  prescribed,  by  the  department  in  relation  to  the  conduct  of 
the  privileges  thereby  granted,  and  the  general  character  of  the  furni- 
ture, fixtures,  equipment,  employees  and  all  things  pertaining  thereto,  or 
to  the  general  management  or  government  of  said  park.  It  was  further 
agreed  that  if  he  should  omit  to  keep  any  of  the  covenants,  the  agree- 
ment might,  at  the  option  of  the  department,  be  revoked,  and  should 
thereupon  become  null  and  void,  and  he  should  remove  the  building 
and  premises,  and  cease  to  exercise  the  privileges  granted  to  him. 

The  plaintiff  alleges  in  his  complaint  that  the  department  of  parks 
threatens  to  eject  and  remove  him  from  the  possession  of  the  building, 
and  will  do  so  unless  it  is  restrained  ;  and  he  brings  this  action  to  pro- 
cure an  injunction  restraining  the  department  from  interfering  with 
him  in  the  conduct  of  his  hotel  or  from  preventing  him  from  enjoying 
the  privileges  granted  by  this  agreement. 

Upon  the  trial  the  foregoing  facts  were  established,  and  it  was  made 
to  appear  that  on  the  29th  of  April,  1898,  the  park  commissioner  of 
the  boroughs  of  Manhattan  and  Richmond  notified  the  plaintiff  that  he 
had  that  day  revoked,  canceled  and  annulled  the  license  agreement 
under  which  he  was  conducting  the  hotel  or  restaurant  in  Riverside 
Park,  known  as  "  Claremont,"  and  ordered  the  plaintiff  to  vacate  the 
premises  on  or  about  the  15th  of  May,  1898.  At  the  conclusion  of 
the  plaintiff's  case,  no  testimony  having  been  offered  on  the  part 
of  the  defendant,  the  court  directed  judgment  to  be  entered  restraining 
the  commissioner  of  parks  from  interfering  with  the  plaintiff  in  the 
conduct  of  said  hotel,  and  from  in  any  way  preventing  the  said  plain- 
tiff from  enjoying  the  privileges  granted  to  him  by  the  agreement  of 
November  8,  1897.     From  that  judgment  this  appeal  is  taken. 

The  defendant  insists  that  as  this  action  is  in  equity,  to  restrain  the 
defendant  from  putting  an  end  to  the  agreement  between  it  and  the 
plaintiff,  it  must  be  based  upon  the  theory  that  he  has  no  legal  right, 
as  against  the  defendant,  to  the  possession  of  this  restaurant.  This 
contention  is  not  well  founded.   In  view  of  the  way  in  which  the  ques- 


GUSHEE   V.   NEW   YORK.  459 

tions  here  are  presented,  it  is  not  necessary  to  consider  whether  the 
plaintiff  has  a  remedy  at  law  for  the  grievance  of  which  he  complains. 
No  such  question  was  raised  at  the  trial  by  motion,  nor  is  there  any 
allegation  in  the  answer  that  the  plaintiff  has  an  adequate  remedy  at 
law.  If  the  defendant  proposed  to  rely  upon  that  point  it  should  have 
raised  the  question  in  its  pleading;  Toiv?i  of  Mentz  v.  CooJc,  108  N,  Y. 
504 ;  or  at  least  should  have  taken  the  point  upon  the  trial  of  the  ac- 
tion. As  it  has  not  done  so,  it  must  be  deemed  to  have  waived  that 
point. 

The  question  is  then  presented  whether  the  plaintiff,  by  this  agree- 
ment, acquired  any  right  which  the  courts  would  protect,  either  at  law 
or  in  equity.  By  the  terms  of  the  agreement  the  plaintiff,  was  bound 
to  keep,  maintain  and  conduct  the  restaurant  in  a  manner  prescribed 
therein.  He  was  to  keep  the  building  in  repair,  and  to  maintain  it  in 
good  and  proper  condition.  This  duty  necessarily  required  him  to  take 
and  keep  possession  of  the  buildings  while  the  agreement  was  in 
force.  He  bound  himself  during  that  same  time  to  pay  for  the  rights 
he  acquired  the  sum  of  $525  a  month.  This  agreement,  involving,  as 
it  did,  the  possession  of  real  estate  and  the  payment  of  a  monthly  rent 
for  it,  was  practically  a  lease.  4  Kent's  Comm.  96,  97  ;  Taylor  Landl. 
&  Tei>.  [8th  ed.]  §  38.  At  the  time  the  agreement  was  made,  the 
charter  of  the  greater  city  had  not  taken  effect,  and  the  department  of 
parks  of  the  then  city  of  New  York  was  exercising  the  powers  given 
to  it  by  the  Consolidation  Act  (Laws  of  1882,  chap.  410).  By  section 
668  of  that  act,  that  department  was  required  and  empowered  to  con- 
trol and  manage  all  public  parks.  There  is  a  well-recognized  distinc- 
tion between  the  duties  imposed  by  the  Legislature  upon  a  municipal 
corporation  for  the  public  benefit  and  those  acts  which  it  does  in  what 
may  be  called  its  private  character,  in  the  management  of  property 
voluntarily  held  by  it  for  its  own  use  and  advantage,  although  such 
use  may  ultimately  inure  to  the  benefit  of  the  public.  Bailey  v.  The 
Mayor,  etc.,  of  New  York,  3  Hill,  531.  The  boundary  between  these 
two  kinds  of  powers  is  shadowy  and  difficult  of  demarcation.  Whether 
a  city,  in  the  control  of  property  which  it  has  taken  for  a  park,  acts  in 
the  one  capacity  or  the  other,  it  is  difficult  to  say.  It  has  been  held 
by  a  court  of  high  reputation  that,  in  the  opening  and  control  of  public 
parks,  a  city  acts  in  its  private  capacity  as  the  owner  of  land  precisely 
as  it  does  in  the  making  of  water  works  or  the  furnishing  of  gas. 
Board  of  Park  Comrs.  v.  Detroit,  28  Mich.  228;  Dillon  Mun.  Corp. 
[4th  ed.]  §§  72,  73. 

The  department  of  parks  acted,  in  making  this  agreement,  in  the 
exercise  of  the  power  given  to  it  by  the  Legislature  to  control  and  man- 
age the  parks.  The  building  in  question  was  the  private  property  of 
the  city.  It  was  proper  that  it  should  be  utilized  for  the  purpose  for 
which  it  was  used,  if,  indeed,  it  were  not  actually  erected  for  that 
purpose  by  the  city  authorities.  That  in  the  control  and  management 
of  the  public  parks  of  a  great  city  it  is  perfectly  proper  to  furnish 


460  GUSHEE   V.    NEW   YOKE. 

not  only  such  innocent  amusements  as  may  enhance  the  pleasure  of 
those  who  resort  to  the  parks,  but  such  opportunities  for  rest  and  re- 
freshmeut  for  themselves  and  their  animals  as  may  be  required,  will 
not  be  disputed. 

The  doing  of  these  things  is  no  part  of  the  public  duty  imposed  upon 
municipal  corporations  as  the  agent  of  the  State  in  the  performance  of 
its  governmental  fuuctious,  but  rather  a  part  of  the  business  of  the 
city  which  it  may  or  may  not  undertake  in  its  private  capacity  as  the 
owner  of  the  lands  which  have  been  set  apart  for  park  purposes. 
Whether  these  things  shall  be  done  at  all,  and,  if  so,  to  what  extent, 
is  a  matter  with  which  the  State,  as  such,  has  no  concern  whatever, 
and  which  in  no  way  affects  the  public  duties  of  the  city  and  has  no 
connection  with  any  function  of  government,  strictly  so  called.  The 
Legislature  has  imposed  upon  the  city  certain  duties  in  respect  of  the 
maintenance  of  order  and  the  punishment  of  crime.  These  duties  are 
public  and  governmental  in  their  nature  and  in  the  performance  of 
them  the  city  acts  as  the  agent  of  the  State.  But  such  duties,  whether 
imposed  upon  the  city  or  upon  the  department  of  parks,  are  of  an 
entirely  different  character  from  those  which  are  imposed  upon  that 
department  by  the  power  which  is  given  to  it  to  make  the  parks  use- 
ful and  convenient  for  the  pleasure  and  comfort  of  the  citizens. 
AVhether  in  doing  those  things  the  authorities  shall  act  themselves,  or 
whether  they  shall  be  performed  by  private  persons  under  an  agree- 
ment with  the  park  authorities,  must  be  left  very  largely  to  the  dis- 
cretion of  those  who  have  control  of  the  parks.  If  in  their  judgment  it 
shall  seem  better  that  the  furnishing  of  refreshment  shall  be  farmed 
out  to  some  person  for  a  consideration,  subject  to  the  regulation  and 
control  of  the  authorities,  it  cannot  be  said,  as  a  matter  of  law,  that 
such  discretion  is  beyond  their  power.  If  in  the  exercise  of  that  dis- 
cretion it  should  be  more  advantageous  to  grant  such  a  privilege  for  a 
fixed  period,  it  certainly  would  not  be  beyond  the  power  of  the  depart- 
ment, unless  it  interfered  with  some  other  power  or  prevented  the 
discharge  of  some  other  duty  which  the  Legislature  imposed  upon 
them,  and  with  the  exercise  of  which  such  an  agreement  was  inconsist- 
ent. There  is  nothing  in  an  agreement  to  permit  these  things  to  be  done 
for  a  fixed  period  of  time  which  of  itself  is  outside  of  the  power  of  the 
department  of  parks  to  control  and  manage  the  parks ;  and  it  cannot 
be  said  as  a  matter  of  law  that  any  particular  period  for  w^hich  such  a 
license  should  be  granted  or  agreement  made,  would  be  unreasonable 
or  tdtra  vires,  unless  it  interfered  with  some  other  and  positive  duty. 

But  it  is  said  by  the  defendant  that  the  making  of  this  agreement, 
by  which  the  possession  of  tliis  house  was  given  to  the  plaintiff  for 
a  term  of  five  years,  put  it  out  of  the  power  of  the  department  of 
parks  to  exercise  the  duty  imposed  upon  it  of  making  rules  and  regula- 
tions, and  enacting  such  ordinances  as  might  be  necessary  for  the  gov- 
ernment and  protection  of  parks.  The  argument  is  that  if  it  should 
happen  that  the  commissioners  of  parks  concluded  that  it  was  not  best 


GUSHEE   V.   NEW   YORK.  461 

to  conduct  a  restaurant  at  "Claremont, "  they  were  precluded  by  the 
agreement  with  the  plaintiff  from  closing  the  restaurant  during  the 
term  of  five  years,  and  this  is  the  reason  wiiy  it  is  said  that  the  agree- 
ment was  beyond  the  power  of  the  department  of  parks,  and,  therefore, 
is  void. 

in  considering  this  point  it  must  be  remembered  that  it  is  not  claimed 
on  the  part  of  the  defendant  that  the  department  of  parks  has  detei'- 
mined  that  no  restaurant  should  be  kept  at  this  place  and  in  this 
building,  nor  is  there  any  evidence  or  suggestion  that  the  plaintiff  is 
not  a  perfectly  proper  person  to  keep  it,  or  that  he  or  any  of  his  em- 
ployees have  failed  to  observe  all  the  rules  and  regulations  that  have 
been  made  for  the  government  of  the  park.  It  does  not  appear  that 
any  regulation  or  ordinance  has  been  made  or  is  intended  to  be  made 
by  the  commissioners  of  parks  or  by  the  commissioner  in  charge  of 
this  park,  which  would  in  the  slightest  degree  be  affected  by  the 
plaintiff's  continuing  in  this  business  at  this  place,  or  that  the  opera- 
tion of  this  restaurant  by  him  would  be  inconsistent  with  any  regula- 
tion or  ordinance  which  is  intended  to  be  made.  Nothing  of  the  sort 
has  been  proven,  nothing  of  the  sort  is  found  by  the  court,  and 
we  would  not,  for  the  purpose  of  reversing  this  judgment,  be  at 
liberty  to  infer  that  anything  of  the  kind  existed  ;  Equitable  Co- 
operative Foundry  Co.  v.  Hersee,  103  N.  Y.  25.  If  anything  of  the 
kind  did  exist,  it  would  present  an  entirely  different  question  from 
that  which  confronts  us  here.  The  question  as  presented  is  simply 
whether  this  agreement  by  which  the  plaintiff  is  authorized  for  a  fixed 
period  to  operate  this  restaurant,  is  so  utterly  void  that  he  will  not 
be  protected  in  the  exercise  of  his  rights,  but  is  liable  to  be  removed 
at  the  mere  caprice  of  the  commissioners  of  parks  without  any  sug- 
gestion that  his  presence  or  the  continuance  of  his  agreement  inter- 
feres in  the  slightest  degree  with  the  performance  of  their  duties.  A 
decision  in  favor  of  the  defendant  involves  the  proposition  that,  with- 
out any  reason,  it  may  remove  this  man  at  its  will  from  this  restaurant, 
and  put  in  some  one  else  to  keep  it  in  the  same  circumstances  and  at 
the  same  rent.  If  that  be  the  rule  it  would  prevent  the  granting  of 
such  a  license  for  any  period,  however  short.  It  cannot  be  said,  as 
a  matter  of  law,  that  the  granting  of  a  license  for  five  years  is  unrea- 
sonable, and  we  cannot  make  any  such  presumption  for  the  purpose  of 
reversing  this  judgment.  The  department  of  parks  is  one  body,  with 
a  continuous  existence,  although  its  membership  may  vary  from  time 
to  time.  Its  duty  to  exercise  its  discretion  must  continue  unimpaired 
at  all  times,  and  it  has  no  power  to  deprive  itself  of  that  discretion 
for  a  week,  any  more  than  it  has  for  five  years,  so  that  it  necessarily 
follows  that  if  this  contract  cannot  be  made  no  other  contract  can  be 
made  which  would  entitle  anybody  to  conduct  this  restaurant  for  any 
specified  time,  however  short.  It  is  apparent  that,  if  that  be  true,  the 
department  of  parks  could  never  make  any  contract  by  which  any  per- 
son would  undertake  the  conduct  of  this  restaurant,  for  no  intelligent 


462  pike's  peak  power  go.  v.  colokado  springs. 

person  would  incur  the  expense  necessary  for  this  undertaking  if  he 
were  liable  at  the  mere  caprice  of  the  department  to  have  his  contract 
determined  and  to  be  removed  immediately  after  he  had  made  it.  In 
our  judgment  no  such  absurd  conclusion  is  required.  The  power  to 
control  and  manage  the  parks  necessarily  involves  the  right  to  cause 
this  restaurant  to  be  conducted  by  some  person  with  whom  a  contract 
shall  be  made  for  that  purpose.  Whatever  contract  is  necessary  for 
that  purpose  is  made  subject  to  the  exercise  by  the  department  of 
parks  of  such  other  duties  as  the  law  devolves  upon  that  department. 
The  contract  as  made  must  be  deemed  to  have  been  made  in  view  of 
the  possible  exercise  of  that  power  if  it  becomes  necessary  to  exercise 
it.  We  are  not  advised  of  any  principle  which  requires  that  this  con- 
tract should  be  held  to  be  void  unless  it  shall  appear  that  it  has  become 
obnoxious  to  some  regulation  or  ordinance  which  has  been  enacted  for 
the  government  of  the  parks. 

But  the  agreement  is  in  terms  subject  to  all  rules,  regulations  and  or- 
dinances now  prescribed,  or  that  might  hereafter  be  prescribed  by  the  de- 
partment, relating  to  the  conduct  of  the  privileges  granted  by  it,  and  the 
general  character  of  the  fixtures,  equipment,  employees  and  all  things 
appertaining  thereto,  and  to  the  general  management  and  government 
of  the  parks,  and  the  plaintiff  takes  his  contract  subject  to  any  such 
regulations.  Even  were  no  such  provision  in  the  contract,  it  would 
still  be  subject  to  any  regulations  or  ordinances  which  the  department 
of  parks  might  see  fit  to  enact  for  the  better  government  of  the  parks, 
or  the  preservation  of  order  in  them,  or  for  the  performance  in  any 
other  way  of  what  might  be  called  its  governmental  functions.  As  to 
those  matters  it  cannot,  by  any  such  agreement,  abdicate  its  functions 
or  abandon  the  duty  which  the  law  has  put  upon  it,  nor  can  this  con- 
tract be  so  construed  as  to  control  in  any  way  the  management  or  the 
exercise  of  those  functions. 


PIKE'S  PEAK  POWER  CO.  v.  COLORADO  SPRINGS. 

1900.     105  Fed.  1. 

Bill  to  enjoin  the  enforcement  of  an  ordinance  by  which  the  city  of 
Colorado  Springs  withdrew  the  right,  previously  given  to  the  plaintiff, 
to  use  the  water  power  of  a  stream  which  supplied  the  city  with  water. ^ 

Sanborn,  Circuit  Judge.  .  .  .  Another  position  urged  by  counsel  for 
the  appellee  is  that  the  system  of  waterworks  of  this  citj',  its  streets, 
parks,  and  public  grounds,  are  held  by  the  municipality  in  its  political 
or  governmental,  and  not  in  its  proprietary  or  business,  capacity  ;  that, 
consequently,  they  cannot  be  converted  from  municipal  uses,  and  a  city 

^  This  short  statement  is  substituted  for  that  of  the  Court.  Part  of  the  opinion 
only  is  given.  —  Ed. 


pike's    peak    power   CO.    V.    COLORADO    SPRINGS.  463 

council  cannot  make  any  agreement  or  contract  relative  to  them  which 
a  succeeding  council  may  not  freely  annul.  The  proposition  is  not 
novel.  It  has  received  the  careful  consideration  of  this  court,  and,  so 
far  as  the  question  it  presents  is  material  to  the  issues  in  this  case,  it 
is  no  longer  open  to  debate  here.  In  Illinois  Trust  &  Savings 
Bank  V.  City  of  Arkansas  City,  76  Fed.  271,  282,  22  C.  C.  A.  171, 
181,  40  U.  S.  App.  257,  276,  34  L.  R.  A.  518,  525,  this  court  an- 
nounced its  conclusion  in  these  words  : 

"A  city  has  two  classes  of  powers,— the  one  legislative,  public, 
governmental,  in  the  exercise  of  which  it  is  a  sovereignty  and  governs 
its  people  ;  the  other,  proprietary,  quasi  private,  conferred  upon  it,  not 
for  the  purpose  of  governing  its  people,  but  for  the  private  advantage 
of  the  inhabitants  of  the  city  and  of  the  city  itself  as  a  legal  personal- 
ity.    In  the  exercise  of  the  powers  of  the  former  class  it  is  governed  by 
the  rule  here  invoked.     In  their  exercise  it  is  ruling  its  people,  and  is 
bound  to  transmit  its  powers  of  government  to  its  successive  sets  of 
officers  unimpaired.     But  in  the  exercise  of  the  powers  of  the  latter 
class  it  is  controlled  by  no  such  rule,  because  it  is  acting  and  contract- 
ing for  the  private  benefit  of  itself  and  its  inhabitants,  and  it  may 
exercise  the  business  powers  conferred  upon  it  in  the  same  way,  and  in 
their  exercise  it  is  to  be  governed  by  the  same  rules  that  govern  a  pri- 
vate individual  or  corporation.      Dill.  ]\Iun.  Corp.  (3d  Ed.)  §  66,  and 
cases  cited  in  the  note ;  /■'Safety  Insulated  Wire  &  Cable  Co.  v.    City  of 
Baltimore,  13  C.  C.  A.  375,  377,  378,  66  Fed.  140,   143,   144;  San 
Francisco   Gas  Co.  v.  City  of  San  Francisco,  9  Cal.  453,  468,  469  ; 
Com.  V.  City  of  Pliiladdpliia,   132  Pa.  St.    288,    19   Atl.    136;  New 
Orleans  Gaslight  Co.  v.  City  of  JSfeio  Orleans,  42  La.  Ann.  188,  192,   7 
South.  559,  560;  Tacoma  Hotel  Co.  v.  Tacoma  Light  &   Water  Co.,  3 
Wash.  St.  316,  325,  28  Fac.  516,  519,  14  L.  R.  A.  669  ;   Wagner  v. 
City  of  Bock  Island,   146,  111.   139,  154,  155,  34  N.  E.  545,  548,  549, 
21  L.  'r.  a.  519  ;  City  of  Vincennes  v.  Citizens'  Gaslight  Co.,  132  Ind. 
114,  126,  31  N.  E   573,  577,  16  L.  E.  A.  485  ;  City  of  Indianapolis  v. 
Indianapolis  Gaslight  &  Coke  Co.,  66  Ind.  396,  403;  Read  v.  Atlantic 
City,  49  N.  J.  Law,  558,   562,  9  Atl.  759.     In  contracting  for  water- 
works to  supply  itself  and  its  inhabitants  with  water,  the  city  is  not 
exercising  its  governmental  or  legislative  powers,  but  its  business  or 
proprietary  powers.     The  purpose  of  such  a  contract  is  not  to  govern 
its  inhabitants,  but  to  obtain  a  private  benefit  for  the  city  itself  and  its 
denizens.      1  Dill.  Mun.  Corp.  §  27  ;  City  of  Cincinnati  v.  Cameron,  33 
Ohio  St.  336,  367;  Safety  Insidated  Wire  &  Cable  Co.  v.  City  of  Balti- 
more, siipra,  and  cases  cited  under  it." 

The  purpose  of  the  city  in  making  the  contract  of  September  8,  1898, 
was  to  enlarge  its  waterworks,  to  increase  its  suppl}'  of  water,  and  to 
furnish  itself  and  its  inhabitants  with  electric  light.  In  contracting 
for  these  purposes  the  city  was  exercising  its  proprietary  or  business 
powers.  It  is  controlled  by  the  same  rules  that  govern  a  private  cor- 
poration, and  its  contract  bound  its  successive  sets  of  officers. 


464  pike's  peak  power  co.  v.  Colorado  springs. 

The  next  proposition  which  counsel  for  the  city  seek  to  maintain  is 
that  the  water  system  of  the  city  and  the  water  which  flows  through  it 
are  held  in  trust  by  the  municipality  for  the  suppression  of  fires,  for 
the  domestic  use  of  its  inhabitants,  and  for  other  customary  municipal 
purposes ;  and  that  the  city  council  has  no  power  to  divert  them  to  the 
generation  of  electricity  for  private  use,  or  to  any  such  purposes. 
Before  entering  upon  the  consideration  of  this  position,  let  us  see  what 
the  power  of  the  city  is  in  regard  to  the  establishment  and  management 
of  its  water  system,  and  what,  under  the  facts  of  this  case,  this  conten- 
tion really  is.  The  statutes  of  Colorado  provide  that  the  city  councils 
of  cities  in  that  state  shall  have  power  to  manage  and  control  all  their 
property  (2  Mills'  Ann.  St.  §  4492);  to  erect  waterworks  on  a  favor- 
able vote  of  their  electors  (2  Mills'  Ann.  St.  §  4403,  par.  67);  "to 
construct  or  authorize  the  construction  of  such  waterworks,  without 
their  limits,  and  for  the  purpose  of  maintaining  and  protecting  the  same 
from  injury  and  the  water  from  pollution,  their  jurisdiction  shall  extend 
over  the  territory  occupied  by  such  works,  and  all  reservoirs,  streams, 
trenches,  pipes  and  drains,  used  in  and  necessary  for  the  construction, 
maintenance  and  operation  of  the  same,  and  over  the  stream  or  source 
from  which  the  water  is  taken,  for  five  miles  above  the  point  from 
which  it  is  taken  ;  and  to  enact  all  ordinances  and  regulations  necessary 
to  carry  the  power  herein  conferred  into  effect"  (Id.  par.  68)  ;  to  con- 
struct reservoirs  in  public  places  in  the  city  or  beyond  the  limits  thereof 
for  the  purpose  of  supplying  the  same  with  water  ;  to  provide  proper 
conducting  pipes  to  regulate  the  distribution  of  water  for  irrigation 
and  other  purposes  (Id.  par.  72).  From  these  provisions  of  the  statutes 
it  will  be  seen  that  the  city  council  of  the  appellee  had  plenary  author- 
ity to  manage  and  control  the  water  system  and  all  the  property  of  the 
city,  and  to  distribute  and  apply  its  water  not  only  to  ordinary  munici- 
pal uses,  but  to  *'  irrigation  and  other  purposes."  These  were  the  powers 
of  the  council  in  this  regard.  Now,  what  was  the  state  of  facts  when  the 
ordinance  of  September,  1898,  was  passed?  The  city  was  not  then 
engaged  in  initiating  and  constructing  a  system  of  waterworks.  That 
had  already  been  done.  A  system  extending  from  watersheds  on 
Pike's  Peak,  19  miles  distant,  and  6,000  feet  above  the  level  of  the  sea,' 
had  been  constructed  and  operated  for  years.  The  city  had  outgrown 
this  system,  and  a  contract  had  been  made  three  3'ears  before  for  the 
construction  of  a  tunnel  to  enlarge  it,  and  to  increase  its  supply  of 
water.  The  contractors  had  exhausted  their  means  and  their  credit, 
and  the  tunnel  still  lacked  an  expenditure  of  $100,000  to  complete  it. 
This  was  the  state  of  the  facts.  No  one  questions  the  power  of  the 
council  of  this  city  to  contract  for  this  tunnel,  and  to  agree  to  pay  for 
it  in  the  money  of  the  city.  No  one  questions  its  power  to  procure 
electric  lights,  conduits,  and  poles  to  carry  its  telegraph  and  telephone 
wires,  and  to  pay  for  them  with  the  funds  of  the  city.  Its  authority 
to  do  these  things  is  so  plain  and  full  that  it  cannot  be  denied.  Now, 
what  did  the  city  do,  and  what  is  the  actual  contention  of  its  counsel 


pike's   peak   power   CO.   V.   COLORADO   SPRINGS,  4G5 

here?  The  price  agreed  upon  by  the  contract  of  1895  for  the  comple- 
tion of  the  tunnel  was  not  compensatory.  It  would  not  pay  for  the 
work  necessary  to  be  done.  The  contractors  could  not  complete  it 
without  other  compensation.  Thereupon  the  city  did  this  :  It  procured 
the  completion  of  the  tunnel,  the  right  to  use  the  conduits  and  poles 
of  Jackson,  his  associates  and  assigns,  to  carry  its  wires,  electric  lights 
for  its  public  buildings,  and  electric  power  to  the  extent  of  50  horse 
power,  without  the  payment  of  an  additional  dollar  of  the  city's 
money,  in  consideration  of  a  permit  or  license  which  it  gave  to  the 
grantees  in  the  September  ordinance  of  the  right  to  use  the  idle  water 
power  that  existed  and  was  running  to  waste  in  its  water  system.  Now, 
what  is  the  real  contention  of  the  counsel  for  the  city  here?  It  is  that, 
while  the  city  council  might  lawfully  have  contracted  for  these  public 
utilities,  and  have  taxed  its  constituents,  and  have  paid  out  their  money 
to  obtain  them,  it  had  no  authority  to  procure  them  for  and  to  pay  for 
them  with  the  idle  water  power  that  existed  in  the  water  system  of  the 
city,  without  the  expenditure  of  a  dollar  of  the  money  of  the  citizens. 
It  is,  in  fact,  that  municipal  corporations  hold  all  that  part  of  public 
utilities  which  they  cannot  apply  to  customary  municipal  uses  in  trust 
to  waste  to  the  loss  of  their  cestnis  que  trnstent,  and  not  in  trust  to 
use  for  their  benefit.  This  proposition,  when  reduced  to  its  last  analy- 
sis, finds  no  support  in  reason  or  authority.  It  is  true,  as  counsel  for 
the  city  assert,  that  the  water,  the  water  system,  and  the  other  public 
utilities  of  a  municipality  are  held  by  it  and  by  its  officers  in  trust  for  its 
citizens,  and  for  the  public;  that  neither  the  city  nor  its  officers  can  re- 
nounce this  trust,  disable  themselves  from  performing  their  public 
duties,  or  so  divert  or  impair  these  utilities  that  they  are  rendered 
inadequate  to  the  complete  performance  of  the  trust  under  which  they 
are  held.  Union  Pac.  By.  Co.  v.  Chicago,  E.  I.  &  P.  Ry.  Co.^  51  Fed. 
309,  317,  2  C.  C.  A.  174,  231,  10  U.  S.  App.  98,  175,  and  cases  there 
cited.  But  it  is  equally  true  that  municipalities  and  their  officers  have 
the  power,  and  it  is  their  duty,  to  apply  the  surplus  power  and  use  of 
all  public  utilities  under  their  control  for  the  benefit  of  their  cities  and 
citizens,  provided,  always,  that  such  application  does  not  materially 
impair  the  usefulness  of  these  facilities  for  the  purposes  for  which  they 
were  primarily  created.  JJnion  Pac.  Ry.  Co.  v.  Chicago  R.  I.  &  P. 
Ry.  Co.,  51  Fed.  309,  321,  2  C.  C.  A.  174,  234,  10  U.  S.  App.  98,  180 ; 
City  of  St.  Louis  v.  I%e  Maggie  P.  (C.  C),  25  Fed.  202 ;  State  v.  City 
ofEau  Claire,  40  Wis.  533  ;  Green  Bay  &  M.  Canal  Co.  v.  Kaukauna 
Water-Poiver  Co.,  70  Wis.  635,  35  N.  W.  529,  36  N.  W.  828  ;  Bell  v. 
City  of  Platteville,  71  Wis.  139,  36  N.  W.  831 ;  French  v.  Inhabitants 
of  Quincy,  3  Allen,  9  ;  Worden  v.  Ci/y  of  Neio  Bedford,  131  Mass.  23; 
Camden  v.  Camden  Village  Corp.,  11  Me.  530,  537,  1  Atl.  689  ;  Brown 
V.  Winnisimmet  Co.,  11  Allen,  326,  334;  Midland  Ry.  Co.  v.  Grreat 
Western  Ry.  Co.,  8  Ch.  App.  841,  851 ;  Simpson  v.  Hotel  Co.,  8  H.  L. 
Caa.  712  ;  Hendee  v.  Pinkertov,  96  Mass.  381,  386.  This  question  was 
presented  to  this  court  and  exhaustively  argued  by  able  counsel  in  Union 


466  pike's  peak  power  co.  v.  colokado  springs. 

Pac.  By.  Co.  v.  Chicago  R.  I.  &  P.  Ry.  Co..,  supra.     In  that  case  the 
Union  Pacific  Railway  Company  had  leased  to  another  company  for  999 
years  the  joint  use  of  its  bridge  across  the  Missouri  river  and  of  its 
terminal  facilities  of  Omaha,  together  with  about  seven  miles  of  its 
track,  and  it  was  contended  that  this  lease  was  beyond  the  powers  of 
the  corporation,  and  void,  because  it  was  a  diversion  of  the  use  of  its 
railroad  facilities  from  the  public  purposes  for  which  the  railroad  cor- 
poration held  them.     The  contract  was,  however,  sustained,  because  it 
appeared  that  the  use  leased  was  a  surplus  use  remaining  after  the 
Union  Pacific  Eailway  Company  had  retained  for  itself  sufiicient  facil- 
ities to  perform  all  its  public  functions  and  to  discharge  all  its  public 
duties.     This  court  held,  after  careful  consideration,  and  its  decision 
was  subsequently  affirmed  by  the  supreme  court  {Union  Pac.  Ry.  Co. 
V.  Chicago  R.  I.  &  P.  Ry.  Co.,  163  U.  S.  564,  16  Sup.  Ct.  1173,  41  L. 
Ed.  265),  that,  if  a  corporation  necessarily  acquires  for  the  conduct  of 
its  corporate  business  facilities  whose  entire  capacity  is  not  needed 
for  its  corporate  use,  it  is  not  required  to  hold  them  in  idleness,  but 
it  has  the  power,  and  it  is  its  duty,  alike  to  its  stockholders  and  the 
public,  to  lease  or  otherwise  apply  the  surplus  use  for  their  benefit.     In 
State  V.  City  of  Eau  Claire,  40  Wis.  533,  and  Green  Bay  &  M.  Canal 
Co.  N.Kaukauna  Water-Potver  Co.,  70  Wis.  635,  35  N.  W.  529, 36  N.  W. 
828,  the  supreme  court  of  Wisconsin  held  that,  where  a  city  had  legis- 
lative authority  to  erect  a  dam  for  the  purpose  of  waterworks  for  the 
city,  it  might  lawfully  lease  for  private  purposes  any  excess  of  water 
not  required  for  its  waterworks.     This  is  a  just  and  reasonable  rule. 
It  is  a  rule  inconsistent  with  no  principal  of  law  or  of  equity,  and  in 
accord  with  that  common  sense  and  common  business  practice  which 
recognize  as  a  public  good  the  growth  of  two  blades  of  grass  where  but 
one  grew  before,  and  the  conversion  of  waste  to  use.     The  case  in  hand 
falls  far  within  the  rule.     By  the  contract  of  September,  1898,  the  city 
renounced  no  trust  that  had  been  imposed  upon  it.     It  disabled  itself 
from  the  dischai'ge  of  no  duty.     It  in  no  way  impaired  the  usefulness 
of  the  water  or  of  the  water  system  of  the  city  for  the  public  purposes 
for  which  it  was  constructed  and  maintained.     On  the  other  hand,  that 
contract  expressly  provided  that  the  water  diverted  by  the  grantees 
under  it  should  be  returned  to  the  water  system  of  tlie  city  unimpaired, 
without  pollution  or  diminution  of  its  flow,  and  that  the  grantees  should 
do  nothing  under  it  which  should  interfere  in  any  way  with  the  success- 
ful operation  of  the  waterworks  of  the  city.     Every  use  of  those  water- 
works and  of  the  water  requisite  to  the  discharge  of  the  trust  under 
which  they  were  held  for  the  usual  municipal  purposes  was  retained  by 
the  city  unimpaired,  while  the  idle  power  therein  which  was  running  to 
waste  was  wisely  utilized,  not  for  private  use,  but  for  the  public  pur- 
pose of  enlarging  the  waterworks  of  the  city,  of  increasing  its  supply 
of  water,,  of  procuring  conduits  and  poles  to  carry  its  wires,  and  of 
obtaining  electric  light  and  power  for  its  public  buildings  and  its  streets. 
The  ordinance  and  the  contract,  therefore,  were  not  void  on  the  ground 


BIDDEFORD    V.    YATES.  467 

that  the  water  system  and  the  water  were  held  by  the  city  in  trust  to 
extinguish  fires,  to  distribute  to  its  inhabitants  for  domestic  uses,  and 
for  other  municipal  purposes,  and  on  the  ground  that  the  municipality  had 
no  power  to  divert  them  to  generate  electricity'  for  private  use,  because 
every  use  of  the  water  and  of  the  waterworks  for  which  they  were  held 
in  trust  was  expressly  retained  by  the  city  unimpaired,  because  the 
grant  in  the  ordinance  was  made  for  public  purposes,  and  not  for 
private  use,  and  because  that  grant  wisely  utilized  an  idle  water  power 
for  the  benefit  of  the  city  and  its  inhabitants,  without  impairing  the  uses 
for  which  the  water  system  was  constructed  and  maintained. 


BIDDEFORD  v.  YATES. 

1908.     104  Me.  506. 

Spear,  J.  This  is  an  action  of  trespass  involving  the  validity  of 
a  lease  of  the  plaintiff  to  the  defendant.  There  is  no  material  dispute 
upon  the  facts.  The  locus  in  quo  is  the  opera  house,  so  called,  em- 
bracing the  hall  in  the  city  building  and  used  for  the  purpose  of  giving 
plays,  operas,  etc.,  together  with  all  the  rooms  and  appurtenances  be- 
longing to  and  connected  with  the  hall.  On  May  24,  1904,  the  plain- 
tiff was  the  owner  of  the  hall  and  appurtenances.  On  the  same  day 
the  cit}^  council  by  its  committee  on  public  property  made  and  delivered 
to  the  defendant  an  instrument,  purporting  to  be  a  lease  of  the  hall, 
expiring  June  first,  1907.  On  February  20,  1907,  another  city  council 
by  the  same  committee  made  a  second  instrument  purporting  to  be  a 
lease  of  the  same  hall  to  take  effect,  in  futuro,  at  the  expiration  of  the 
first  lease,  to  wit:  June  1,  1907,  for  a  term  of  three  years  from  the 
latter  date.  Between  February  20,  1907,  the  date  of  the  second  lease, 
and  June  first,  1907,  when  it  was  to  take  effect,  the  term  of  office  of  the 
city  officials,  under  whom  this  lease  was  made,  had  expired,  and  on  the 
third  Monday  of  March,  a  new  city  government  had  been  inaugurated. 

On  the  10th  day  of  June,  the  city  council  passed  the  following  order  : 
"Ordered,  that  the  city  solicitor  be,  and  hereby  is,  authorized  to  ob- 
tain possession  of  the  opera  house  and  to  adopt  any  proceedings  that 
he  may  deem  necessary  therefor,  including  the  institution  and  prose- 
cution of  any  action  at  law  or  equity." 

On  the  23rd  day  of  August,  1907,  the  city  solicitor,  whose  official 
capacity  is  admitted,  took  physical  possession  of  the  leased  premises 
without  the  knowledge  or  consent  of  the  lessee,  for  the  express  purpose 
of  excluding  him  therefrom,  and  notified  the  defendant  of  his  assump- 
tion of  possession  and  the  purpose  thereof  and  to  abstain  from  any 
interference  therewith.  On  the  24th  day  of  August,  Yates,  the  lessee, 
demanded  of  tlie  city  solicitor  permission  to  enter,  without  being  ob- 
liged to  break  in,  claiming  a  right  of  occupancy  under  the  instrument 


468  BIDDEFORD    V.   YATES. 

purporting  to  be  a  lease  elated  Feb.  20,  1907.  Being  refused  admis- 
sion, he  forcibly  entered,  and  took  possession  of  the  hall. 

This  was  the  only  public  hall  owned  by  the  city  of  Biddeford  from 
May  1,  1904,  to  the  date  of  the  plaintiff's  writ.  The  charter  of  the 
city  of  Biddeford  contains  the  following  clause :  "  The  city  council 
shall  have  the  care  and  superintendence  of  city  buildings  and  the  cus- 
tody and  management  of  all  such,  property,  with  power  to  let  or  sell 
what  may  be  legally  let  or  sold."  Under  the  city  charter  admitted  to 
have  been  duly  accepted,  authorizing  the  establishment  of  by-laws  and 
ordinances  for  the  government  of  the  city,  was  promulgated  in  1887 
the  following  ordinance : 

"Chapter  15,  City  Building.  Sec.  1.  The  committee  on  public 
property  shall  have  the  care  and  custody  of  such  building  and  its  ap- 
purtenances, and  all  the  alterations  and  repairs  thereof.  Sec.  2.  The 
said  committee  are  authorized  to  lease  any  part  of  said  building  not 
already  under  lease  or  appropriated  to  any  of  the  branches  of  the  city 
government  for  any  period  not  exceeding  the  term  of  three  years,  and 
upon  such  term  and  conditions  as  they  may  deem  expedient,  subject, 
however,  to  the  approval  of  the  maj'or  and  aldermen." 

During  the  period  covering  both  the  first  and  the  second  alleged  lease, 
the  following  joint  rule  was  passed  both  by  the  city  council  of  1904 
and  that  of  1907:  "Rule  1.  At  the  commencement  of  the  municipal 
year  the  following  joint  standing  committees  shall  be  appointed  by  the 
mayor  unless  otherwise  ordered  by  the  respective  boards,  namely : 
Committee  on  public  property  ...  to  consist  of  the  mayor,  one  alder- 
man and  three  members  of  the  common  council."  A  committee  thus 
appointed  negotiated  the  terms  and  executed  the  leases  above  referred 
to,  both  of  which  were  approved  by  the  mayor  and  a  majority  of  the 
aldermen  of  the  city.  At  the  time  the  above  leases  were  executed  and 
delivered  to  Yates,  that  part  of  the  city  building  known  as  the  opera 
house  was  not  appropriated  to  the  use  of  any  of  the  branches  of  the 
city  government  nor  leased  to  any  other  person.  The  defendant  ful- 
filled all  the  stipulations  and  conditions  contained  in  the  first  lease. 
He  had  also  complied  with  all  the  requirements  of  the  second  lease  so 
far  forth  as  he  could,  the  city  having  refused  to  accept  payment  of 
rent  and  having  notified  the  defendant  that  it  would  uot  in  the  future 
accept  rent. 

In  addition  to  the  admitted  facts,  the  plaintiff  claims  that  the  second 
lease  was  made  to  usurp  the  powers  of  the  administration  then  about 
to  be  elected  and  was  given  for  a  grossly  inadequate  consideration, 
and  was  thereby  fraudulent.  As  the  evidence  does  not  sustain  the  al- 
legation of  fraud,  the  political  aspect  of  the  case  disappears  and  we 
feel  authorized  to  consider  it  only  upon  the  admitted  facts. 

These  in  our  opinion  involve  simply  a  question  of  power  on  the  part 
of  the  city  government. 

1st.     Could  the  city  council  itself  authorize  a  lease  of  this  property? 

2nd.  If  so,  could  it  delegate  its  powers  to  a  committee  to  effectuate 
its  purpose? 


BIDDEFORD    V.   YATES.  469 

3rd.  If  yes,  could  the  city  council  execute  and  deliver  a  lease 
under  one  city  government  to  take  effect,  iu  future,  under  another? 

Plaintiff  admits  the  authority  of  the  city  government  to  lease  the 
opera  house,  if  of  that  species  of  city  property  that  "  may  be  legally 
let."  But  the  city  claims  that  the  property  covered  by  the  second 
lease  was  "  already  under  lease"  and  therefore  within  the  exception  of 
the  ordinance,  ch.  15,  sec.  2.  We  think  this  position  untenable.  The 
second  lease  did  not  take  effect  until  after  the  expiration  of  the  term 
of  the  first  one,  and  therefore  cannot  be  said,  in  the  sense  in  which 
the  ordinance  should  be  construed,  to  cover  property,  "  already  under 
lease."  The  interpretation  of  this  phrase  as  claimed  hy  the  plaintiff 
would  prevent  the  city  from  renewing  a  lease  even  a  day  before  it  ex- 
pired. Such  construction  is  contrary  to  all  business  methods  and 
should  not  be  established  unless  the  language  of  the  ordinance  ex- 
pressly requires  it.  The  phraseology  does  not  require  it,  but  rather 
its  usual  and  ordinary  meaning,  the  one  naturally  suggested  is,  that  the 
city  should  not  execute  two  leases  covering  the  same  property  for  the 
same  period  of  time.  If  the  ordinance  was  intended  to  mean  any  more 
than  this,  it  could  easily  have  been  made  to  say  so,  and  if  the  con- 
struction claimed  by  the  plaintiff  had  been  in  the  mind  of  the  legisla- 
ture, it  would  have  said  so.  It  would  never  have  left  so  important  and 
unusual  a  provision,  if  intended  to  mean  what  the  plaintiff  claims,  to 
be  established  by  the  uncertain  interpretation  permissible  by  the  lan- 
guage employed. 

Again  the  plaintiff  contends  that  the  premises  let  were  public  prop- 
art}',  and  could  be  rented  only  for  public  purposes,  ThonuUke  v.  Cam- 
den, 82  ]\Iaiue,  39,  Goss  v.  Greenleaf,  98  Maine,  436,  and  could  be 
used  for  private  purposes  when  not  needed  for  public  use,  Reynolds  v. 
Waterville,  92  Maine,  dissenting  opinion,  page  317,  and  cases  cited, 
and  that  under  the  leases  in  question  the  public  use  was  made  subser- 
vient to  the  private  use.  The  agreed  statement  does  not  furnish  any 
evidence  of  this  coi]tention,  and  so  far  as  it  goes,  tends  to  show  the 
reverse,  it  being  admitted  that  the  part  of  the  city  building  known  as 
the  opera  house,  was  not  appropriated  to  the  use  of  the  city,  and  was 
reserved  for  memorial  day,  for  the  graduation  exercises  of  the  high 
school  and  necessary  rehearsals  therefor.  The  lessee  was  also  re- 
quired to  let  the  hall,  when  not  otherwise  engaged  in  good  faitli,  on 
the  payment  of  running  expenses  for  any  public  purpose  upon  applica- 
tion by  the  mayor,  to  any  political  body  in  the  city  at  the  request  of 
the  chairman  of  respective  city  committees,  and  to  any  established 
church  in  the  city  one  day  in  each  year  to  each  such  church.  It  appears 
that  the  opera  house  was  subject  to  all  these  public  uses  free  from  any 
charge  except  the  running  expenses.  These  would  have  to  be  paid  by 
some  one,  whether  the  city  or  the  lessee  was  in  control  of  the  hall. 

Our  conclusion  is  that  under  section  4  of  the  charter  which  provides 
that  the  city  council  shall  have  "power  to  let  or  sell  what  may  be 
legally  let  or  sold,"  the  first  question  should  be  answered  in  the  atfirma- 


470  BIDDEFORD   V.    YATES. 

tive.  "We  need  not  look  beyond  the  city  charter  for  authority  to  exer- 
cise this  power  on  the  part  of  the  city  as  the  charter  is  an  act  of  the 
legislature  and  the  section  under  consideration  \'iolates  no  provision  of 
the  constitution. 

"Whether  the  city  government  could  delegate  authority  to  a  committee 
to  let  city  property,  depends  entirely  upon  whether  the  delegation  of 
sucli  authority  invested  the  committee  with  judicial  or  ministerial 
powers.  "Functions  which  are  purely  executive,  administrative  or 
ministerial  may  be  delegated  to  a  committee.  It  is  only  such  functions 
as  are  governmental,  legislative  or  discretionary  which  cannot  be  dele- 
gated." A.  &  E.  Encyc.  of  Law,  Vol.  20,  page  1218.  These  duties 
may  be  simplified  by  classing  them  under  the  head  of  ministerial  and 
judicial  functions  as  the  act  of  every  public  official  is  either  ministerial 
or  judicial.  People  v.  Jerome,  73  N.  Y.  Supp.  306.  A  purely  minis- 
terial duty  is  one  as  to  which  nothing  is  left  to  discretion.  Judicial 
acts  involve  the  exercise  of  discretionary  power  or  judgment  Judicial 
acts  are  not  confined  to  the  jurisdiction  of  judges. 

No  question  is  raised  as  to  the  authority  of  the  city  council  to  appoint 
a  committee  on  public  property,  and  none  could  be  raised,  provided  they 
invested  the  committee  with  ministerial  powers  onW.  Hence  the  issue 
here  presented  is:  Did  the  ordinances,  under  which  the  committee 
acted,  confer  upon  it  ministerial  authority  only,  or  did  it  go  further  and 
clothe  it  with  judicial  powers? 

To  determine  this  issue,  let  us  analyze  the  ordinance  in  question  and 
discover  just  what  powers  it  did  confer  upon  the  committee  on  public 
property.  The  legislature  in  granting  the  charter  invested  the  com- 
mittee with  power  to  let  "what  may  be  legally  let."  The  ordinance 
authorized  the  committee  to  lease  any  part  of  the  building  not  already 
under  lease  or  appropriated  to  the  use  of  the  city  for  any  period  not 
exceeding  three  years.  It  has  already  been  determined  that  the  lease 
embraced  only  what  might  be  "legally  let."  So  far  the  authority  of 
the  ordinance  comports  with  that  of  the  charter.  The  substance  of  the 
act  conferred  by  the  charter  was  the  right  to  lease.  The  appointment 
of  a  committee  by  an  ordinance  was  a  proper  and  convenient  way  to 
carry  out  the  details  of  the  right  conferred.  Without  any  ordinance  at 
all,  the  c\ty  council  could  have  let  the  hall.  The  charter  so  provided. 
The  ordinance  therefore  was  made,  as  all  ordinances  are,  for  the  pur- 
pose of  prescribing  a  permanent  method  of  transacting  the  particular 
business  involved.  Therefore  the  language  of  the  ordinance  that  the 
committee  may  lease  ' '  upon  such  terms  and  conditions  as  they  m'ay  deem 
expedient"  involves  simply  those  ministerial  acts  necessary  to  perform 
the  act  of  leasing.  In  the  li^ht  of  the  context  which  determines  that 
a  lease  may  be  made,  what  shall  be  let  and  the  term  of  the  lease,  this 
clause  seems  to  have  been  used  for  the  purpose  of  authorizing  the 
committee  to  negotiate  the  various  details  which  might  arise  in  connec- 
tion with  the  transaction  involved.  Those  things  which  it  would  be  im- 
possible for  an  ordinance  to  prescribe  in  detail  were  left  to  the  action 


BIDDEFORD   V.   YATES.  471 

of  the  committee.  An  illustration  of  this  point  is  found  in  the  present 
case  where  the  specifications  submitted  by  the  lessee,  prescribing 
various  things  which  he  stipulated  to  do,  embrace  three  full  pages,  and 
from  twenty  to  thirty  different  items. 

This  interpretation  seems  to  be  fully  borne  out  in  Gillelt  v.  Logan 
County  et  al.,  G7  111.  256.  In  this  case  the  Board  of  Supervisors  of  the 
county  authorized  three  of  their  own  number,  who  had  been  appointed 
for  the  purpose  of  employing  counsel  to  defend  the  interest  of  the 
county,  ' '  to  use  their  discretion  in  employing  such  further  agents  or 
assistants  as  might,  to  them,  seem  expedient,  for  the  purpose  of  de- 
fending the  interest  of  the  county  .  .  .  the  committee  being  em- 
powered to  contract  with  such  agents  or  assistants."  The  court  say: 
"  The  first  ground  relied  on  in  support  of  the  bill  is,  that  the  foregoing 
resolution  was  illegal;  the  Board  of  Supervisors  had  no  right  to  dele- 
gate to  a  committee  such  power  as  was  given  by  the  resolution,"  and 
in  answer  to  this  contention  hold,  ''  That  the  duties  of  a  committee,  al- 
though they  might  include  the  making  of  contracts,  were  merely  min- 
isterial, which  tliey  might  properly  be  appointed  to  perform  as  recog- 
nized in  Cify  of  Alton  v.  Mulledy,  21  111.  76;  McClaughry  v.  Hancock 
County^  46  111.  356."  In  speaking  of  the  impracticability  of  the  Board 
of  County  Commissioners  sitting  in  session  to  carry  out  all  the  details 
of  a  contract,  which  applies  with  equal  force  to  the  action  of  a  city 
council  in  a  similar  case,  the  court  further  add  :  "  The  position  taken 
by  the  appellant  involves  the  absurd  consequence  that  this  Board  of 
Supervisors,  composed  of  nineteen  members,  should  have  been  kept  in 
constant  session  during  the  progress  of  tliis  protracted  investigation, 
in  order  that  they  might,  from  day  to  day,  as  required,  make  bar- 
gains, as  a  body,  for  each  item  of  service  and  expense  incurred.  It  was 
unnecessary ;  they  might  act  by  a  committee  appointed,  as  in  the  present 
mode." 

The  right  of  a  city  council  to  delegate  its  authority  to  a  committee  to 
perform  acts  which  the  council  itself  might  legally  do,  was  raised 
in  Hitchcock  v.  Galveston,  96  U.  S.  341,  in  which  the  court  hold  :  "  If 
the  city  council  had  lawful  authority  to  contract  the  sidewalks,  involved 
in  it  was  the  right  to  direct  the  mayor,  and  the  chairman  on  streets  and 
alleys,  to  make  a  contract  on  behalf  of  the  cit}^  for  doing  the  work. 
We  spend  no  time  in  vindicating  this  proposition.  It  is  true,  the  city 
council  could  not  delegate  all  the  power  conferred  upon  it  by  the  legis- 
lature, but  like  every  other  corporation,  it  could  do  its  ministerial  work 
by  agents.     Kothing  more  was  done  in  this  case." 

This  case  also  clearly  determines  that  when  a  city  council  is  author- 
ized to  make  a  contract,  it  can  appoint  a  committee  to  negotiate  the 
details.  To  the  same  effect  is  Han.  &  St.  Jo.  R.  B.  Co.  v.  Marion 
County,  36  INIo.  296,  in  which  it  was  contended  by  the  defendant  that 
the  county  court  was  the  only  agent  authorized  by  law  to  issue  instru- 
ments in  payment  to  subscribers  for  stock  and  that  the  instruments 
were  not  issued  by  the  court,  but  by  certain  Justices  appointed*  by  the 


472  BIDDEFORD   V.   YATES. 

court,  aud  that  their  act  was  not  binding  on  the  defendant ;  that  is,  that 
the  county  court  could  not  delegate  its  authority  to  the  persons  named. 
But  the  appellate  court  held  otherwise,  saying:  "  When  the  legislature 
empowered  the  county  court  to  subscribe  stock  to  the  railroad  company, 
it  also  clothed  it  with  the  means  which  might  be  convenient  for  making 
its  action  effectual.     The  substantive  act  was  the  taking  of  the  stock." 

To  the  same  effect  also  is  Collins  v.  Holyoke^  146  Mass.  298,  where 
the  court  say:  "It  is  true  as  contended  by  the  petitioner  that  the 
mayor  and  aldermen  could  not  delegate  the  authority  given  them  by  the 
public  statutes,  Ch.  50,  sec.  1,  to  lay  and  make  common  sewers.  But 
no  suggestion  is  made  that  the  sewer  was  not  legally  laid,  and  it  is  only 
objected  that  it  was  '  built  under  the  direction  and  supervision  of 
a  committee  composed  of  four  members  of  the  common  council  and 
three  aldermen.'  But  this  was  done  by  the  order  of  the  mayor  and 
aldermen.  The  statute  which  gave  them  authority  to  make  the  sewers 
did  not  preclude  them  from  employing  agents  to  supervise  and  direct 
the  work."  Hence  it  appears  from  this  opinion  that  the  substance  of 
the  thing  which  could  not  be  delegated  was  the  laying  out  of  the  sewer, 
and  not  the  details  involved  in  its  construction,  some  of  which  must 
necessarily  have  embraced  the  negotiating  of  contracts. 

The  third  objection  raised  by  the  plaintiff  to  the  legality  of  the  lease 
is  based  upon  the  fact  that  one  city  council  made  the  lease  to  take  effect, 
in  futuro,  under  another. 

But  it  must  be  observed  that,  while  the  personnel  may  have  been 
different,  the  city  council  under  which  the  lease  took  effect  was  pre- 
cisely the  same  tribunal  under  the  charter  and  the  ordinances  that  ex- 
ecuted the  lease.  The  plaintiff,  however,  contends  that  the  fact  of  an 
election  between  the  execution  of  the  lease  and  the  beginning  of  its 
term,  involving  a  possible  change  in  the  personnel  of  the  new  city 
council,  made  the  attempt  to  execute  a  lease,  to  thus  take  effect,  an  in- 
vasion of  the  prerogatives  of  the  new  board.  But  we  are  unable  to 
discover  any  substantial  reason  in  support  of  this  contention.  While 
the  personnel  of  a  city  government  may  change,  the  tribunal  itself  is  a 
continuous  body.  As  was  said  in  Collins  v.  Holyoke,  supra:  "The 
membership  of  the  defendant  board  is  not  the  same  as  when  the  assess- 
ment iu  question  was  made.  But  while  its  members  change  from  time 
to  time,  the  Board  itself  as  a, tribunal  is  continuously  the  same."  See 
also  Fairbanks  v.  Fitchbarg,  132  Mass.  42.  While  one  city  government 
composed  of  one  set  of  individuals  might,  upon  a  given  question,  do 
precisely  the  reverse  of  another  city  government,  composed  of  a  differ- 
ent set  of  individuals,  yet,  what  the  individuals  of  different  city  govern- 
ments might  do,  can  in  no  way  affect  the  right  of  a  tribunal  as  a  city 
government  to  act  upon  any  measure  properly  before  it.  What  the  in- 
dividuals may  do,  as  a  matter  of  opinion,  is  one  thing,  but  what  the 
tribunal,  a  perpetual  body,  is  empowered  to  do  as  a  matter  of  authority, 
is  quite  another  thing.  It  appears  to  us  that  the  logic  of  the  plaintiff's 
contention  tends  to  limit  a  city  council  to  action  with  respect  to  such 


BIDDEFORD    V.   YATES.  473 

matters  only  as  are  to  go  into  effect  under  its  own  administration. 
Such  limitation  would  segregate  a  municipal  government  from  all  other 
corporations  and  business  institutions,  in  the  methods  employed  for  the 
transaction  of  business,  and  might  it  seems  to  us  prove  highly  detri- 
mental. A  municipal  government  represented  by  its  city  council  should 
be  regarded  as  a  business  institution  with  reference  to  those  transactions 
or  matters  permitted  by  the  terms  of  its  charter.  When  not  limited 
to  a  prescribed  luethod  it  should  be  permitted  to  act  with  the  same 
business  foresis^ht  that  is  accorded  to  other  business  institutions.  A 
corporation  or  individual  dealing  in  the  letting  of  property  might  find 
it  of  the  highest  importance  to  make  a  lease  today  to  take  effect  months 
or  even  years  hence.  They  might  find  it  equally  detrimental  to  be 
limited  in  their  power  to  thus  anticipate  the  future.  This  idea  is  so 
apparent  as  a  business  proposition  as  to  become  self  evident. 

We  have  seen  that  the  city  council  itself  was  empowered  to  make  the 
lease  in  question  and  could  delegate  authority  to  a  committee  to  nego- 
tiate its  terms.  We  are  therefore  of  the  opinion  that  a  lease  thus 
legally  executed  is  not  void  from  the  fact  that  it  is  made  by  one  city 
council  to  take  effect,  in  futuro,  under  another. 

Judgment  for  the  defendant. 


474 


MAESH   V.   FULTON   COUNTY. 


>}^ 


^ 


CHAPTEE  V.    \^  ^V^ 
LIABILITY.  r%ibsJ  /O^iiL^^ 


K 


Section  1.  —  Liahility  on  Contracts. 


A^' 


>y\ 


MAESH    V.    FULTON   COUNTY. 

1070.     10  Wallace  (U.  S.},  676.1 

Error  to  U.  S.  Circuit  Court  for  Soutliern  District  of  Illinois.  ^Xf»   ^ 

Suit   on   fifteen   bonds,  purporting  to  be   the   obligations   of   the   /rs 
County  of  Fulton  to  the  Central  Jjivision  of   the   Mississippi   and      '^ 
Wabash  K.  R.  Co.,  or  bearerT     'ihe  Mississippi  and  Wabash  R.  R.  j^ 
Co.  was  incorporated  by  the  legislature  of  Illinois  in  February,  1853.  ^^ 
At  an  election  held  in  November,  1853,  a  majority  of  the  voters  of  *^ 
Fulton  County  voted  that  the  county-  should  subscribe  $75,000  to  the  ^ 
capital  stock  of  the  aforesaid  company,  payable  in  the  bonds  of  the 
county;  such  bonds  not  to  be  issued  until    certain  conditions  were    ^ 
complied  with.      (The  material  portions  of  the  Illinois  statute  author-    /" 
izing  county  subscriptions  are  stated  in  the  opinion  of  the  court.)  < 

In  February,  1857,  an  act  was  passed  by  the  legislature  of  Illinois  ( 
amending  the  charter  of  the  Mississippi  and  Wabash  Company,  by 
which  the  line  of  the  railroad  was  divided  into  three  divisions,  desig- 
nated the  Western,  the  Central,  and  the  Eastern  divisions,  and  each 
division  was  placed  under  the  management'and  control  of  a  board  of 
three  commissioners,  to  be  elected  by  the  stockholders  of  the  divi- 
sion, and  to  be  invested  with  all  the  powers  of  the  original  board  of 
directors  of  the  company  over  the  road  in  their  division. 

In  April,  1857,  the  stockholders  within  the  Central  Division  elected 
commissioners  of  the  division,  who  thenceforth,  until  December, 
1868,  exercised  all  the  powers  conferred  by  this  amendatory  act. 

On  the  books  of  the  Central  Division  thus  organized,  the  clerk 
of  the  County  Court  of  Fulton  County,  acting  as  clerk  of  the  board 
of  supervisors  of  that  county,  made  the  subscription  of  $75,000  in 
the  name  of  the  county,  and  in  September  following  issued  to  this 
division  the  fifteen  bonds  which  are  in  suit  in  this  cause. 

FThe  bonds  contain  no  recitals  as  to  the  statute  under  which  they 
were  issued,  or  as  to  the  prior  votes  or  proceedings  of  the  County  or 
\ts  officers.] 

There  were  various  acts  of  the  board  of  supervisors  of  Fulton 
County  done  after  the  issue  of  these  bonds,  which  tended  to  show 


1  Statement  abridjred.  —  Ed. 


cJUti-t- 


■'A 


\ 


O  W;    -  * — ' 


MARSH   V.   FULTOX   COUNTY. 


475 


that  the  board  recognized  them  aud  considered  the  county  bound  fol 
them. 

Defendants  pleaded  the  general  issue,  and  judgment  was  rendered 
in  their  favor. 

0.  H.  Brownhig  and  0.  C.  Skinner^  for  plaintiff  in  error,  re- 
lied largely  on  the  fact  which  they  asserted,  aud  which  they  relied  . 
on  as  not  disproved,  that  the  bonds  were  in  the  hands  of  innocent 
holders  for  value;  and  that  whether  regularly  issued  originally  or 
not,  they  had  been  ratified  by  the  county  in  so  many  different  ways, 
so  advisedly  and  so  unequivocally,  that  irregularity  could  not  now 
be  set  up. 

S.  Cornifig  Judd,  contra. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

The  questions  presented  for  our  consideration  are,  first,  whether 
the  bonds  issued  by  the  clerk  of  the  County  Court  of  Fulfon  County 
to  the  Central  Division  of  the  Mississippi  aud  Wabash  Kailroaa 
Company  were,  at  the  time  of  their  issue,  valid  obligations  of  the 
County  of  Fulton;  and,  second,  if  not  thus  valid,  whether  they  have 
become  obligator}'  upon  the  county  by  any  subsequent  ratification. 

Were  they  valid  when  issued?  The  answer  depends  upon  the  law 
of  Illinois  then  in  force.  The  clerk  of  the  County  Court  possessed 
no  general  authority  to  bind  the  count3'=  He  was  a  mere  ministerial 
officer  of  the  board  of  supervisors ;  aud  that  body  was  equally  desti- 
tute of  authority  in  this  particular,  except  as  the  law  of  Illinois 
gave  it.  That  law  authorized  au}'  county  of  the  State,  and,  of 
course,  its  supervisors,  who  exercised  the  powers  of  the  county,  to 
subscribe  stock  to  any  railroad  company  in  a  sum  not  exceeding 
oue  hundred  thousand  dollars,  and  to  pay  for  such  subscription  in 
its  bonds,  provided  such  subscription  was  previously  sanctioned  by 
a  majority  of  the  qualified  voters  of  the  county  at  an  election  called 
for  the  expression  of  their  wishes  on  the  subject,  and  it  prohibited 
any  subscription  or  the  issue  of  any  bonds  for  such  subscription 
without  such  previous  sanction.  "  No  subscription  shall  be  made  or 
purchase  bond  issued  by  any  coiinty,"  says  the  law,  "  unless  a 
ma]ority~of  the  qualified  voters  of  such  county  .  .  .  shall  vote  for  the 
"same."  Aud  the  law  further  requires  that  the  notices  calling  for  the 
"election  "  shall  specify  the  company  in  which  stock  is  proposed  to  be  i 
subscribed."  j 

These  provisions  furnish  the  answer  to  the  first  question  presented. 
The  only  subscription  authorized  by  the  voters  of  Fulton  County  was  . 
that  to  the  ^Mississippi  aud    Wabash    Railroad    Company,   and    one  1 
to  tiiL'  PL'ttjfsbiirgh  and  Springfield   Company.      The  Central  Division  \ 
of  the  Mississippi   ami  Wabash  Enilroad  Company   was  a  tliffereut  ; 
corporation  from  the  original  comjiany.     It  has  been  so  held  by  the 
Supreme  Court  of  Illinois  in  a  case  involving  the  consideration  of  a 
portion  of  the  bonds  in  suit  and  the  remaining  sixty  thousand  dollars 
of  bonds  of  the  original  subscription. 


■^i*- 


476 


MARSH   V.   FULTON   COUNTY. 


mV 


t    -Aj 


^tA 


^'a(- 


N 


The  amendatory  act  of  1857  dividing  the  road  into  three  divisions, 
and  suT)jecting  each  division  to  the  control  and  management  of  a 
different  board,  clothed  with  all  the  powers  of  the  original  board,  so 
far  as  the  division  was  concerned,  w^orked  a  fundamental  change  in 
the  character  of  the  original  corporation,  and  created  three  distinct 
corporations  in  its  place.  A  subscription  to  a  company  whose 
charter  provided  for  a  continuous  line  of  railroad  of  two  hundred 
and  thirty  miles,  across  the  entire  State,  was  voted  by  the  electors  of 
Fulton  County;  not  a  subscription  to  a  company  whose  line  of  road 
was  less  than  sixty  miles  in  extent,  and  which,  disconnected  from  the 
other  portions  of  the  original  line,  would  be  of  comparatively  little 
value. 

But  it  is  earnestly  contended  that  the  plaintiff  was  an  innocent 
purchaser  of  the  bonds  without  notice  of  their  invalidity.  If  such 
were  the  fact  we  do  not  perceive  how  it  could  affect  the  liability  of  the 
County  of  Fulton.  This  is  not  a  case  where  the  party  executing  the 
instruments  possessed  a  general  capacity  to  contract,  and  where  the 
instruments  might  for  such  reason  be  taken  without  special  inquiry 
into  their  validity.  It  is  a  case  where  the  power  to  contract  never 
existed  — •  where  the  instruments  might,  with  equal  authority,  have 
been  issued  by  any  other  citizen  of  the  county.  It  is  a  case,  too, 
where  the  holder  was  bound  to  look  to  the  action  of  the  officers  of  the 
county  _and  ascertain  whether  the  law  had  been  so  far  followed  by 
themes  to  justify  the  issue  of  the  bonds.  The  authority  to  contract 
iinust  exist  before  any  protection  as  an  innocent  purchaser  can  be 
claimed  by  the  holder.  This  is  the  law  even  as  respects  commercial 
paper,  alleged  to  have  been  issued  under  a  delegated  authority,  and 
is  stated  in  the  case  of  Floyd  Acceptances.^  In  speaking  of  notes 
and  bills  issued  or  accepted  by  an  agent,  acting  under  a  general  or 
special  power,  the  court  says:  "  In  each  case  the  person  dealing  with 
the  agent,  knowing  that  he  acts  only  by  virtue  of  a  delegated  power, 
must,  at  his  peril,  see  that  the  paper  on  which  he  relies  comes  within 
the  power  under  which  the  agent  acts.  And  this  applies  to  every 
person  who  takes  the  paper  afterwards;  for  it  is  to  be  kept  in  mind 
that  the_protection  which  commercial  usage  throws  around  negotiable,, 
^ap-Si"  -  cannot  be  used  to  establish  the  authority  by  which  it  was 
originally  issued."  "* 

It  is  also  contended  that  if  the  bonds  in  suit  were  issued  without 
authority  their  issue  was  subsequently  ratified,  and  various  acts  of 
the  supervisors  of  the  county  are  cited  in  support  of  the  supposed 
ratification.  These  acts  fall  very  far  short  of  showing  any  attempted 
ratification  even  by  the  supervisors.  But  th.e  answer  to  them  all  is 
that  the  power  uf  ratification  did  not  lie  with  the  supervisors.  A 
ratification  is,  in  its  effect  upon  the  act  of  an  agent,  equivalent  to 
the  possession  by  him  of  a  previous  authority.  It  operates  upon  the 
ftct  ratified  in  the  same  manner  as  though  the  authority  of  the  agent 

1  7  Wallace.  676. 


TOWN   OF   COLOMA   V.    EAVES. 


477 


to  do  the  act  existed  originally.  It  follows  that  a  ratification  can 
oul}'  be  made  when  the  party  ratifying  possesses  the  power  to  per- 
form the  act  ratified.  The  supervisors  possessed  no  authority  to 
make  the  subscription  or  issue  the  bonds  in  the  first  instance  without 
the  previous  sanction  of  the  qualified  voters  of  the  county.  The 
supervisors  in  that  particular  were  the  mere  agents  of  the  county. 
They  could  not,  therefore,  ratify  a  subscription  without  a  vote  of 
the  county,  because  they  could  not  make  a  subscription  in  the  first 
instance  without  such  authorization.  It  would  be  absurd  to  say  that 
they  could,  without  such  vote,  by  simple  expressions  of  approval, 
or  in  some  other  indirect  way,  give  validit}'  to  acts,  when  they  were 
directly  in  terms  prohibited  by  statute  from  doing  those  acts  until 
after  such  vote  was  had.  That  would  be  equivalent  to  saying  that 
an  agent,  not  having  the  power  to  do  a  particular  act  for  his  prin- 
cipal, could  give  validity  to  such  act  by  its  indirect  recognition.^ 

We  do  not  mean  to  intimate  that  liabilities  may  not  be  incurred  by 
counties  independent  of  the  statute.  Undoubtedly  the}^  may  be. 
The  obligation  to  do  justice  rests  upon  all  persons,  natural  and 
artificial,  and  if  a  county  obtains  the  money  or  property  of  others" 
wTffiout  authority,  the  law,  independent  of  an}-  statute,  will  compel 
restitution  or  compensation.  But  this  is  a  very  different  thing  from 
enforcing  an  obligation  attempted  to  be  created  in  one  way,  when  the 
statute  declares  that  it  shall  only  be  created  in  another  and  different  way. 

We  perceive  no  error  in  the  record,  and  the  judgment  of  the  Circuit 
Court  must,  therefore,  be  Affirmed. 


-   ,j    J  — ~ 


•^Jpw 


OF   COLOMA   V.    EAVES. 

1875.     92  U.  S.  484. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  Illinois. 

Assumpsit  brought  by  the  plaintiff  below  to  recover  the  amount  due 

on  the  coupons  attached  to  certain  bonds,  purporting  to  have  been 

issued   by  the  town  of  Coloma,  through    its  proper   officers,  to   the 

^(^hicago  and  Rock  River  Railroad  Company,  in  payment  of  a  sub- 

-^   -scription  of  S50,000  by  the  town  to  said  company.     The  form  of  the 

^j\    bond  is  as  follows :  — 


H 
^ 


'0 

^  United  Statks  of  America.  [81,000. 

"County  of  Whiteside, 

"  State  oflUinois,  Toion  of  Coloma  :  — 

♦'  Know  all  men  by  these  presents.  That  the  township  of  Coloma, 
in  the  county  of  Whiteside,  and  State  of  Illinois,  acknowledges  itself 
to  owe  and  be  indebted  to  the   Chicago  and   Rock  River  Railroad 

^w/<r~  1    McCracken  u.  City  of  San  Francisco,  16  California,  624. 


P 


478 


TOWN   OF   COLOMA   V.   EAVES. 


■k^oJU^ 


>  V 


-i' 


Company,  or  bearer,  in  the  sum  of  $1,000,  lawful  money  of  the 
United  States;  which  sum  the  said  town  of  Coloma  promises  to  pay 
to  the  Chicago  and  Rock  River  Railroad  Compan}^,  or  the  bearer 
hereof,  on  the  first  day  of  July,  1881,  at  the  office  of  the  treasurer  of 
the  county  of  Whiteside  aforesaid,  in  the  State  of  Illinois,  on  the 
presentation  of  this  bond,  with  interest  thereon  from  the  first  day  of 
January,  1872,  at  the  rate  of  ten  per  centum  per  annum,  payable 
annually  at  the  office  of  the  treasurer  of  the  county  of  Whiteside 
aforesaid,  ou  the  presentation  and  surrender  of  the  annexed  coupons. 

"  [U.  S.  %b  revenue-stamp.] 

"  This  bond  is  issued  under  and  by  virtue  of  a  law  of  the  State  of 
Illinois  entitled  '  An  Act  to  incorporate  the  Chicago  and  Rock  River 
Railroad  Company,'  approved  March  24,  1869,  and  in  accordance 
mth^-ar-^vote  of  the  electors  of  said  township  of  Coloma,  at  ajreg_ular^ 
I  election  held  July  28,  1869,  in  accordance  with  said  law,  and  under 
a  law  of  tne  State  of  Illinois  entitled  '  An  Act  to  fund  and  provide 
for  the. paying  of  the  railroad  debts  of  counties,  townships,  cities, 
and  towns,'  in  force  April  16,  1869;  and,  when  this  bond  is  regis- 
teredjn.the  State  auditor's  office  of  the  State  of  Illinois,  the  princi- 
DalandL  interest  will  be  paid  by  the  State  treasurer,  as  provided  by 
said  last-mentioned  law. 

"  In  witness  whereof,  the  supervisor  and  town-clerk  of  said  town 
have  hereunto  set  their  hands  and  seals  this  first  day  of  January, 
A.D.   1872. 

''(Signed)  M.  R.  Adams,  Siqoervisor.  [seal.] 

"(Signed)  J.  D.  Davis,  Toivn-Clerk.  [seal.]" 

Recovery  was  resisted  by  the  town,  mainly  upon  the  alleged  ground 
of  a  want  of  power  in  the  officers  of  the  town  to  issue  the  bonds, 

(because  the  legal  voters  of  the  town  had  not  been  notified  to  vote 
upon  the  question  of  the  town's  making  the  subscription  in  question. 
On  the  trial  of  the  case,  judgment  was  rendered  for  the~plaintrfF 
for  the  amount  of  the  coupons,  and  interest  after  they  were  due. 
C.  M.  Oshorn  for  plaintiff. 
J.  Grant.,  contra. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 
It  appears  by  the  record  that  the  plaintiff  is  a  bona  fide  holder  and 
owner  of  the  coupons  upon  which  the  suit  is  founded,  having  obtained 
them  before  they  w^ere  due,  and  for  a  valuable  consideration  paid. 
;  The  bonds  to  which  the  coupons  were  attached  were  given  in  pay- 
ment of  a  subscription  of  $50,000  to  the  capital  stock  of  the  Chicago 
and  R^ock  River  Railroad  Companj^,  for  which  the  town  received  in 
return  certificates  of  five  hundred  shares,  of  $100  each,  in  the  stock 
of  the  company.  That  stock  the  town  retains,  but  it  resists  the  pay- 
ment of  the  bonds,  and  of  the  coupons  attached  to  them, 
that  they  were  issued  without  lawful  authority. 


alleging 


TOWN   OF   COLOMA   V.   EAVES. 


479 


Saying  nothing  at  present  of  the  dishonesty  of  such  a  defence 
while  the  consideration  for  which  the  bonds  were  given  is  retained, 
we  come  at  once  to  the  question,  whether  authority  was  shown  for 
the  stock  subscription,  and  for  the  consequent  issue  of  the  bonds. 
At  tiie  outset,  it  is  to  be  observed  that  the  question  is  not  between 
the  town  and  its  own  agents:  it  is  rather  between  the  town  and  a 
person  claiming  through  the  action  of  its  agents.  The  rights  of  the 
town  as  against  its  agents  may  be  very  different  from  its  rights  as 
against  parties  who  have  honestly  dealt  with  its  agents  as  such,  on 
the  faith  of- their  apparent  authority. 

By  an  act  of  the  legislature  of  Illinois,  the  Chicago  and  Eock  River 
Railroad  Company  was  incorporated  with  power  to  build  and  operate 
a  railroad  from  Rock  Falls  on  Rock  River  to  Chicago,  a  distance  of 
about  one  hundred  and  thirty  miles.  The  tenth  section  of  the  act 
enacted,  that,  "  to  aid  in  the  construction  of  said  road,  any  incor- 
porated city,  town,  or  township,  organized  under  the  township  organ- 
ization laws  of  the  State,  along  or  near  the  route  of  said  road,  might 
subscribe  to  the  capital  slock  of  said  company."  That  the  town  of 
Coloma  was  one  of  the  municipal  divisions  empowered  by  this  sec- 
tion to  subscribe  fully  appears,  and  also  that  the  railroad  was  built 
into  the  town  before  the  bonds  were  issued.  But  it  is  upon  the 
eleventh  section  of  the  act  that  the  defendant  relies.  That  section  is 
as  follows:  — 

"  No  such  subscription  shall  be  made  until  the  question  has  been 
submitted  to  the  legal  voters  of  said  city,  town,  or  township,  in 
which  the  subscription  is  proposed  to  be  made.  And  the  clerk  of 
such  city,  town,  or  township,  is  hereby  required,  upon  presentation 
of  a  petition  signed  by  at  least  ten  citizens  who  are  legal  voters  and 
tax-payers  in  such  city,  town,  or  township,  stating  the  amount  pro- 
posed to  be  subscribed,  to  ^ost,  up^notices  in  three  public  places  in 
each  town  oiJ:owu£hip ;  which  notices  shall  be  posted  not  less  than 
thirty  days  prior  to  holding  ¥uch"'electioD,  notifying  the  legal  voters 
or^uch  town^of  township  to  meet  at  the  usual  places  of  holding 
glectionsTn  such  town  or  township,  for  the  purpose  of  voting  for  or 
against  such  subscriptions.  If  it  shall  appear  that  a  majority  of  all 
the  legal  voters  of  such  city,  town,  or  township,  voting  at  such  elec- 
tion, have  voted  '  for  subscription,'  it  shall  be  the  dnty  of  the^presi- 
dent  of  the  board  of  trustees,  or  other  executive  officer  of  such  town, 
and  of  the  supervisor  in  townships,  to  subscribe  to  the  capital  stock 
TTf-'Said  railroad  company,  in  the  name  of  such  city,  town,  or  town- 
ship, the  amount  so  voted  to  be  subscribed,  and  to  receive  from  such 
company  the  proper  certificates  therefor.  He^haU^also  execute  to 
said  company,  in  the  name  of  such  city,  town,  or  township,  bonds 
bearing  interest  at  ten  per  cent  per  annum,  which  bonds  shall  run 
foTaTtefm  of  not  more  than  twenty  years,  and  the  interest  on  the 
Bame  shall  be  made  payable  annually;  and  which  said  bonds  shall  be 
signed  by  such  president  or  supervisor  or  other  executive  officer,  and 


f  (<_  d»..<J!k4"NJ 


•-^ 


>^^ 


DV  St 


-'c*: 


^XXj^,.^^-  ','  •— >  O^ 


'stovfex. 


OL 


\S-< 


;^^..».aA-H5' , 


^' 


O  L 


480 


TOWN   OF   COLOMA  V.    EAVES. 


be  attested  by  the  clerk  of  the  city,  town,  or  township,  in  whose 
name  the  bonds  are  issued." 

Sect.  12  provides,  "  It  shall  be  the  duty  of  the  clerk  of  any  such 

!  city,  town,  or  township,  in  which  a  vote  shall  be  given  in  favor  of  sub- 

jBcriptions,  within  ten  days  thereafter,  to  transmit  to  the  county-clerk 

lof  their  counties  a  transcript  or  statement  of  the  vote  given,  and  the 

amount  so  voted  to  be  subscribed,  and  the  rate  of  interest  to  be  paid." 

Most  of  these  provisions  are  merely  directory.  But  conceding,  as 
we  do,  that  the  authority  to  make  the  subscription  was,  by  the 
eleventh  section  of  the  act,  made  dependent  upon  the  result  of  the 
submission  of  the  question,  whether  the  town  would  subscribe,  to  a 
popular  vote  of  the  township,  and  upon  the  approval  of  the  subscrip- 
tion by  a  majority  of  the  legal  voters  of  the  town  voting  at  the  elec- 
tion, a  preliminary  inquiry  must  be.  How  is  it  to  be  ascertained 
whether  the  directions  have  been  followed?  whether  there  has  bctu 
any  popular  vote,  or  whether  a  majority  of  the  legal  voters  present 
at  the  election  did,  in  fact,  vote  in  favor  of  a  subscription?  Is  the 
ascertainment  of  these  things  to  be  before  the  subscription  is  made, 
and  before  the  bonds  are  issued?  or  must  it  be  after  the  bonds  have 
been  sold,  and  be  renewed  every  time  a  claim  is  made  for  the  pay- 
ment of  a  bond  or  a  coupon?  The  latter  appears  to  us  inconsistent 
with  any  reasonable  construction  of  the  statute.  Its  avowed  purpose 
was  to  aid  the  building  of  the  railroad  by  placing  in  the  hands  of  the 
railroad  company  the  bonds  of  assenting  municipalities.  These 
bonds  were  intended  for  sale ;  and  it  was  rationally  to  be  expected 
that  they  would  be  put  upon  distant  markets.  It  must  have  been 
considered,  that,  the  higher  the  price  obtained  for  them,  the  more 
advantageous  woul3~~it  be  for  tEe~company,  and  for  the  cities  and 
towns  which  gave  the  bonds  in  exchange  for  capital  stock.  Every 
thing  that  tended  to  depress  the  market-value  was  adverse  to  the 
ob  lect  the  legislature  had  in  view.  It  could  not  have  been  overlooked 
that  their  market-value  would  be  disastrously  affected  if  the  distant 
purchasers  were  under  obligation  to  inquire  before  their  purchase,  or 
whenever  they  demanded  payment  of  principal  or  interest,  w^hether 
ceFtain  contingencies  of  fact  had  happened  before  the  bonds  were 
issued,  —  contingencies  the  Jiappening  of  which  it  would  be  almost 
impossible  for  them  in  many  cases  to  ascertain  with  certainty.  Im- 
posing such  an  obligation  upon  the  purchasers  would  tend  to  defeat 
the  primary  purpose  the  legislature  had  in  view;  namely,  aid  in  the 
construction  of  the  road.  Such  an  interpretation  ought  not  to  be 
given  to  the  statute,  if  it  can  reasonably  be  avoided;  and  we  think  it 
may  be  avoided. 

At  some  time  or  other,  it  is  to  be  ascertained  whether  the  direc- 
tions of  the  act  have  been  followed ;  whether  there  was  any  popular 
vote;  or  whether  a  majority  of  the  legal  voters  present  at  the  election 
.  did,  in  fact,  vote  in  favor  of  the  subscription.  The  duty  of  ascer- 
..'.aM|     Ltaining  was  plainly  intended_  to  be_ vested  somewhere,  and  once  fd* 


-x» 


TOWN   OF   COLOMA   V.   EAVES, 


481 


all;  and  the  only  persons  spoken  of  who  have  any  duties  to  peiform 
respecting  the  election,  and  action  consequent  upon  it,  are  the  towu- 
clerk  and  the  supervisor  or  other  executive  officer  of  the  city  or  town. 
It  is  a  fair  presumption,  therefore,  that  the  legislature  intended  that 
those  officers,  or  one  of  them  at  least,  should  determine  whether 
the  requirements  of  the  act  prior  to  a  subscription  to  the  stock  of 
a  railroad  company  had  been  met.  This  presumption  is  strengthened 
by  the  provisions  of  the  twelfth  section,  which  make  it  the  duty  of 
the  clerk  to  transmit  to  the  county-clerk  a  transcript  or  statement, 
verified  by  his  oath,  of  the  vote  given,  with  other  particulars,  in  case 
a  subscription  has  been  voted.  How  is  he  to  perform  this  duty  if  he 
is  not  to  conduct  the  election,  and  to  determine  what  the  voters  have 
decided?  If,  therefore,  there  could  be  any  obligation  resting  on  per- 
sons proposing  to  purchase  the  bonds  purporting  to  be  issued  under 
such  legislative  authority,  and  in  accordance  with  a  popular  vote,  to 
inquire  whether  the  provisions  of  the  statute  had  been  followed,  or 
whether  the  conditions  precedent  to  their  lawful  issue  had  been  com- 
plied with,  the  inquiry  must  be  addressed  to  the  town-clerk  or  exec 
utive  officer  of  the  municipality,  — to  the  very  person  whose  duty  it 
was  to  ascertain  and  decide  what  were  the  facts.  The  more  thei 
statute  is  examined,  the  more  evident  does  this  become.  The 
eleventh  section  (quoted  above)  declared,  that  if  it  should  appear  that 
a  majority  of  the  legal  voters  of  the  city,  town,  or  township,  voting, 
had  voted  "for  subscription,"  the  executive  officer  and  clerk  should 
Bubscribe  and  execute  bonds.  "If  it  should  appear,"  said  the  act. 
Appear  when?  Why,  plainly,  before  the  subscription  was  made 
and  the  bonds  were  executed;  not  afterwards.  Appear  to  whom? 
In  regard  to  this,  there  can  be  no  doubt.  Manifestly  not  to  a  court, 
after  the  bonds  have  been  put  on  the  market  and  sold,  and  when 
payment  is  called  for,  but  if  it  shall  appear  to  the  persons  whose 
province  it  was  made  to  ascertain  what  had  been  done  preparatory  to 
their  own  action,  and  whose  duty  it  was  to  issue  the  bonds  if  the  vote 
appeared  to  them  to  justify  such  action  under  the  law.  These  per- 
sons were  the  supervisor  and  town-clerk.  Their  right  to  issue  the 
bonds  was  made  dependent  upon  the  appearance  to  them  of  the 
performance  of  the  conditions  precedent.  It  certainly  devolved  upon 
some  person  or  persons  to  decide  this  preliminary  question;  and 
there  can  be  no  doubt  who  was  intended  by  the  law  to  be  the  arbiter. 
'Tn'^Uommissioiiers  v.  Nichols,  14  Ohio  St.  260,  it  was  said  that  "  a 
statute,  in  providing  that  county  bonds  should  not  be  delivered  by 
the  commissioners  until  a  sufficient  sum  had  been  provided  by  stock- 
subscriptions,  or  otherwise,  to  complete  a  certain  railroad,  and  impos- 
ing upon  them  the  duty  of  dplivering  the  bonds  when  such  provision 
had  been  made,  without  indicating  any  person  or  tribunal  to  deter- 
mine that  fact,  necessarily  delegates  that  power  to  the  commis- 
Bioners;  and,  if  delivered  improvidently,  the  bonds  will  not  be 
invalidated." 


I 


y^'UsO  ^^^i^^^     ■ 


uc- 


482 


TOWN    OF    COLOMA    V.    EAVES. 


w>^ 


6^Vn».Ol 


In  the  present  case,  tbe^j3erson__or  persons  wbose_d^  was  to 

determine  whether  the  statutory  requisites  to  a  subscription  and  to^ 
an  authorized  issue  of  the  bonds  had  been  performed  were  those  whose 
luty  it  was  also  to  issue  the  bonds  in  the  event  of  such  penormance. 
The  statute  required  the  supervisor  or  other  executive  officer  not  only 
CO  subscribe  for  the  stock,  but  also,  in  conjunction  vrith  the  clerk, 
to  execute  bonds  to  the  railroad  company  in  the  name  of  the  town 
jfor  the  amount  of  the  subscription.     The  bonds  were  required  to  be 
Rigned  by  the  supervisor  or  other  executive  officer,  and  to  be  attested 
>)y  the  clerk.     They  were  so  executed.     The  supervisor  and  the  clerk 
signed  thern;  and  they  were  registered  in  the  office  of  the  auditor  of 
ihe  State,  in    accordance  with  an  act,  requiring   that,  precedent  to 
their  registration,  the    supervisor   must   certify   under   oath   to   the 
auditor  that  all  the  preliminary  conditions  to  their    issue    required 
Dy  the  law  had  been  complied  with.     On  each  bond  the  auditor  cer- 
tified the  registry.     It  was  only  after  this  that  they  were  issued.     And 
the  bonds  themselves  recite  that  they  "  are  issued  under  and  by  virtue 
of  the  act  incorporating  the  j-ailroad  company,"  approved  March  24, 
1869,  "  and  in  accordance  withithe  vote  of  the  electors  of  said  town- 
ship of  Coloma,  at  a  regular  election  held  July  28,  1869,  in  accord- 
ance with  said  law."     After  all  this,  it  is  not  an  open  question,  as 
between  a  boiia  fide  holder  of  the  bonds  and  the  township,  whether 
all  the  prerequisites  to  their  issue  had  been  complied  with.     Apart 
from  and  beyond  the  reasonable  presumption  that  the  officers  of  the 
law,    the   township-officers,  discharged   their   duty,    the   matter   baa 
passed  into  judgment.     The  persons  appointed  to  decide  whether  the 
necessary    prerequisites    to    their    issue    had    been    completed    have 
decided,  and  certified  their  decision.     They  have  declared  the  con- 
tingency to  have  happened,  on  the  occurrence  of  which  the  authority 
to  issue  the  bonds  was  complete.     Their  recitals  are  such  a  decision; 
and  beyond  those  a  ho7ia.  fide  purchaser    is  not    bound  to   look  fcr 
evidence  of  the  existence  of  things   in  pais.     He  is  bound  to  know 
the  law  conferring  upon  the  municipality  power  to  give  the  bonds  on 
the  happening  of  a  contingency;  but  whether  that  has  happened  or 
not  is  a  question  of  fact,  the  decision  of  which  is  by  the  law  confided 
to  others,  —  to  those  most  competent  to  decide  it,  —  and  which  the 
purchaser  is,  in  general,  in  no  condition  to  decide  for  himself. 

This  we  understand  to  be  the  settled  doctrine  of  this  court. 
Indeed,  some  of  our  decisions  have  gone  farther.  In  the  leading 
case  of  K)iox  v.  Aspinwall^  21  How.  544,  the  decision  was  rested 
upon  two  grounds.  One  of  them  was  that  the  mere  issue  of  the 
bonds,  containing  a  recital  that  they  were  issued  under  and  in 
pursuance  of  the  legislative  act,  was  a  sufficient  basis  for  an  assump- 
tion by  the  purchaser  that  the  conditions  on  which  the  county  (in 
that  case)  was  authorized  to  issue  them  had  been  complied  with;  and 
it  was  said  that  the  purchaser  was  not  bound  to  look  farther  for 
evidence  of   such  compliance,  though  the  recital  did  not   affirm  iU 


TOWN    OF   COLOMA   V.    EAVES. 


483 


This  position  was  supported  by  reference  to  The  Royal  British  Bank 
V.  Torquand,  6  Ell.  &  Bl.  327,  a  case  in  the  Exchequer  Chamber, 
which  fully  sustains  it,  and  the  decision  in  which  was  concurred  in 
by  all  the  judges.  This  position  taken  in  Knox  v.  Aspinwall  has 
been  more  than  once  reaffirmed  in  this  court.  It  was  in  Moran  v. 
Miami  Count//,  2  Black,  732;  in  Mercer  County  v.  Hackett,  1  Wall. 
83;  in  Supervisors  v.  Schenk,  5  id.  784;  and  in  Mayor  v.  Muscatine, 
I  id.  384.  It  has  never  been  overruled ;  and,  whatever  doubts  may 
flave  been  suggested  respecting  its  correctness  to  the  full  extent  to 
which  it  has  sometimes  been  announced,  there  should  be  no  doubt  of 
the  entire  correctness  of  the  other  rule  asserted  in  Knox  v.  Aspinwall. 
That,  we  think,  has  been  so  firmly  seated  in  reason  and  authority, 
that  it  cannot  be  shaken.  What  it  is  has  been  well  stated  in  sect. 
419  of  Dillon  on  Munic.  Corp.  After  a  review  of  the  decisions  of 
this  court^the  author  remarks,  "  If,  upon  a  true  construction  of  the 
legislative  enactment  conferring  the  authority  (viz.,  to  issue  munici- 
pal bonds  upon  certain  conditions),  the  corporation,  or  certain  officers, 
or  a  given  body  or  tribunal,  are  invested  with  power  to  decide 
whether  the  condition  precedent  has  been  complied  with,  then  it 
may  well  be  that  their  determination  of  a  matter  in  pais,  which  they 
are  authorized  to  decide,  w"ll,  in  favor  of  the  bondholder  for  value, 
bind  the  corporatica."  This  is  a  very  cautious  statement  of  the 
doctrine.  It  may  be  restated  in  a  slightly  ^afferent  form.  Where' 
legislative  s,uthority  has  beer  given  tc  a  municipality,  or  to  its  officers, 
fjo  subscribe  for  the  stock  of  a  railroad  company,  and  to  issue  munici- 
'oaX  bonds  ^.n  payment,  but  only  on  some  precedent  condition,  such 
as  a  popubi-  vote  favoring  the  subscription,  and  where  it  may  be 
gathered  from  the  legislative  enactment  that  the  officers  of  the 
XT'inicipality  were  In.'ested  ^ith  power  ''.o  decide  whether  the  condi- 
tion precedent  has  been  complied  with,  tb^i^  recital  that  it  has  been, 
made  m  the  bonds  issued  by  them  and  iaeld  by  a  bona  fide  purchaser, 
is  conclusive  of  th*^  fact,  and  binding  upon  the  m.unicipalit}';  for 
the  recital  is  itself  a  decision  of  the  fact  by  the  appointed  tribunal. 
Tn  Bissell  v.  Jeffersonviile,  24  How.  287,  it  app-^^ared  that  the  common 
council  of  the  city  wei'e  authorized  by  the  legislature  to  subscribe  for 
stock  in  a  railroad  company;  and  to  issue  bonds  for  the  subscription, 
on  the  petition  of  three-fourths  of  the  legal  voters  of  the  city.  The 
council  adopted  a  resolution  to  subscribe,  reciting  in  the  preamble 
that  more  than  three- fourths  of  the  legil  voters  had  petitioned  for  it, 
and  authorized  the  mayor  and  city  clerk  to  sign  and  deliver  bonds  for 
the  sum  subscribed.  The  bonds  recited  that  they  were  issued  by 
authority  of  the  common  council,  and  that  three-fourths  of  the  legal 
voters  had  petitioned  for  the  same,  as  required  by  the  charter.  In  a 
suit  subsequently  brought  by  an  innocent  holder  for  value  to  recover 
the  amount  of  unpaid  coupons  for  interest,  it  was  held  inadmissible 
for  the  defendants  to  show  that  three-fourths  of  the  legal  voters  of 
the  city  had  not  signed  the  petition  for  the  stock  subscription.     A 


\)xJL>^- 


(^^y 


484  TOWN   OF   COLOMA   V.   EAVES. 

similar  ruling  was  made  in   Van  Hostrop  v.  Madison  City,  1  "Wall, 
291,  and  in  Mercer  County  v.  Hackett^  id.  83. 

The  same  principle  has  recently  been  asserted  in  this  court  after 
very  gi-ave  consideration,  and  it  must  be  considered  as  settled.  In 
St.  Joseph's  Toicnship  v.  Rogers,  16  Wall.  644,  it  is  stated  thus:  — 

"  Power  to  issue  bonds  to  aid  in  the  construction  of  a  railroad  is 
frequently  conferred  upon  a  municipality  in  a  special  manner,  or 
subject  to  certain  regulations,  conditions,  or  qualifications;  but  if  it 
appears  by  their  recitals  that  the  bonds  were  issued  in  conformity 
with  these  regulations,  and  pursuant  to  those  conditions  and  quali- 
fications, proof  that  any  or  all  of  these  recitals  were  incorrect  will 
not  constitute  a  defence  for  the  corporation  in  a  suit  on  the  bonds  or 
coupons,  if  it  appears  that  it  was  the  sole  province  of  the  municipal 
officers  who  executed' the  bonds  to  decide  whether  or  not  there  had 
been  an  antecedent  compliance  with  the  regulation  condition,  or 
qualification,  which  it  is  alleged  was  not  fulfilled." 

There  is  nothing  in  the  case  of  Marsh  v^Fulton,  10  "VYall.  675,  to 
which  we  have  been  referred,  at  all  inconsistent  with  the  rule  thus 
asserted.  In  that  case,  there  were  no  recitals  in  the  bonds;  and 
there  was  no  decision  that  the  conditions  precedent  to  a  subscription, 
or  to  the  gift  of  authority  to  subscribe,  had  been  performed.  The 
question  was,  therefore,  open. 

"What  we  have  said  disposes  of  the  present  case  without  the  neces- 
sity of  particular  consideration  of  the  matters  urged  in  the  argument 
of  the  defendant  below.  It  was  inadmissible  to  show  what  was 
attempted  to  be  shown ;  and,  even  if  it  had  been  admissible,  the  effort 
to  assimilate  the  case  to  Marsh  v.  Fulton  would  fail.  There  the 
subscription  was  for  the  stock  of  a  different  corporation  from  that  for 
which  the  people  had  voted :  here  it  was  not. 

J  f^-yj\^      Judgment  affirmed. 

\^  Mr.  Justice  Bradley  delivered  the  following  concurring  opinion :  — 

V'''^^'^\     V         I  dissent  from  the  opinion  of  the  court  in  this  case,  so  far  as  it 

«>;w*^)    may  be  construed  to  reaffirm  the  first  point  asserted  in  the  case  of 

Knox   County  v.  Aspinivall ;  to  wit,   that  the  mere    execution   of  a 

bond  by  officers  charged  with  the  duty   of   ascertaining  whether   a 

condition  precedent  has  been  performed  is  conclusive  proof  of    its 

.  ^,   performance.     If,  when  the  law  requires  a  vote  of  tax-payers,  before 

^  t*v-t>**^j^^.eA^bond8  can  be  issued,  the  supervisor  of  a  township,  or  the  judge  of 

jrJc^v'-'  probate  of   a  county,  or  other   officer   or  magistrate,   is    the   officer 

^^^^  ■  "  designated  to  ascertain  whether  such  vote  has  been  given,  and  is  also 

JllM  the  proper  officer  to  execute,  and  who  does  execute,  the  bonds,  and 

^  ,  w,»-^.,  if  the  bouds  themselves  contain  a  statement  or  recital  that  such  vote 

wr^t^u^^  \ha8  been  given,  then  the  bona  fide  purchaser  of  the  bonds  need  go 

^  back  no  farther.     He  has  a  right  to  rely  on  the  statement  as  a  doter^ 

mination  of  the  question.     But  a  mere  execution  and  issue  of  the 

bonds  without  such  recital  is  not,  in  my  judgment,  conclusive.     It 


HUMBOLDT   TOWNSHIP    V.   LONG.  485' 

may   be  prima  facie   sufficient;    but   the   contrary  may  be   shown. 
This  seems  to  me  to  be  the  true  distinction  to  be  taken  on  this  sub- 
ject; and  I  do  not  think  that  the  contrary  has  ever  been  decided  by 
this  court.     There  have  been  various  dicta  to  the  contrary ;  Ijut  the 
cases,  when  carefully  examined,  will  be  found  to  have  had  all  the 
prerequisites  necessary  to  sustain  the  bonds,  according  to  my  view 
of  the  case.     This  view  was  distinctly  announced  by  this  court  in 
the  case  of  Lynde  v.  The  County  of  Witinebayo,   16  Wall.    13.     In 
the  case  now  under  consideration,  there  is  a  aufficien|-,  recit^nl   in  the  i 
bond  to  show  that  the  proper  election  was  held  and  the  proper  vote  1    ji-^-jv&^a^ 
gtren;  and  the  bond  was  executed  by  the  officers  whose  duty  it  waa  \ 
fo  ascertain  these  facts.     On  this  ground,  and  this  alone,  I  concur  in 
the  judgment  of  the  court.  '2lt^^.'.  >-),<,^ 

Mr.  Justice  Miller,  Mr.  Justice  Davis,  and  Mr.  Justice  Field,     " 
dissented. 


MILLER,  J.,   IN  HUMBOLDT   TOWNSHIP  v.    LONG. 

1875.     92  U.  S.  642,  pp.  646-651. 

Mr.  Justice  Miller,  with  whom  concurred  Mr.  Justice  Davis 
and  Mr.  Justice  Field,  dissenting. 

We  have  had  argued  and  submitted  to  us,  during  the  present  term, 
some  ten  or  twelve  cases  involving  the  validity  of  bonds  issued  in 
aid  of  railroads  by  counties  and  towns  in  different  States. 

They  were  reserved  for  decision  until  a  late  day  in  the  term;  and 
the  opinions  having  been  delivered  in  all  of  them  within  the  last  few- 
weeks,  I  have  waited  for  what  I  have  thought  proper  to  say  by  way 
of  dissent  to  some  of  them  until  the  last  of  these  judgments  are 
announced,  as  they  have  been  to-day. 

I  understand  these  opinions  to  hold,  that,  when  the  constitution  of 
the  State,  or   an   act  of   its  legislature,   imperatively   forbids   these  .  ,. 

municipalities  to  issue  bonds  in  aid  of  railroads  or  other  similar  I  C  --v^-«N- 
enterprises,  all  such  bonds  issued  thereafter  will  be  held  void.  But, 
if._there  exists  any  authority  whatever  to  issue  such  bonds,  no  re- 
strictions, limitations,  or  conditions  imposed  by  the  legislature  in 
the  exercise  of  that  authority  can  be  made  effectual,  if  they  be  disre- 
garded by  the  officers  of  those  corporations. 

That  such  is  the  necessary  consequence  of  the  decision  just  read, 
in  the  cases  from  the  State  of  Kansas,  is  too  obvious  to  need  argu- 
ment or  illustration.  That  State  had  enacted  a  general  law  on  the 
subject  of  subscriptions  by  counties  and  towns  to  aid  in  the  con- 
struction of  railroads,  in  which  it  was  declared  that  no  bonds  should 
be  issued  on  which  the  interest  required  an  annual  levy  of  a  tax 
beyond  one  per  cent  of  the  value  of  the  taxable  property  of  the 
municipality  which  issued  them. 


,  (jj-j-A.^  i^ 


r..  V 


486  HUMBOLDT   TOWNSHIP   V.    LONG. 

In  the  cases  under  consideration  this  provision  of  the  statute  was 
wholly  disregarded.     I  am  not  sure  that  the  relative  amount  of  the 
vsjJC.\^  bonds,  and  of  the  taxable  property  of  the  towns,  is  given  in  these 

^j^,  ■  \^     cases  with  exactness;  but  I  do  know  that  in  some  of  the  cases  tried 

^  1^  ij— -       it.  before  uie  last  summer  in  Kansas  it  was  shown  that  the  first  and  only 
issue  of  such  bonds  exceeded  in  amount  the  entii-e  value  of  the  tax- 
able property  of  the  town,  as  shown  by  the  tax-list  of  the  year  pre- 
^■'^^''*'-^  ceding  the  issue. 

v"**-*^*    '  This  court  holds  that  such  a  showing  is  no  defence  to  the  bonds, 

notwithstanding  the  express  prohibition  of  the  legislature. 

It  is  therefore  clear  that,  so  long  as  this  doctrine  is  upheld,  it 
is  not  in  the  power  of  the  legislature  to  authorize  these  corporations 
to  issue  bonds  under  any  special  circumstances,  or  with  any  limitation 
in  the  use  of  the  power,  which  may  not  be  disregarded  with  impunity. 
It  may  be  the  wisest  policy  to  prevent  the  issue  of  such  bonds  alto- 
gether. But  it  is  not  for  this  court  to  dictate  a  policy  for  the  States 
on  that  subject. 

The  result  of  the  decision  is  a  most  extraordinary  one.     It  stands 

A*"'^'*^'       alone  in  the  construction  of  powers  specifically  granted,  whether  the 

.^rixXyS"*^  source  of  the  power  be  a  State  constitution,  an  act  of   the   legisla- 

.      ff\     ture,  a  resolution  of  a  corporate  body,  or  a  written  authority  given 

Yw-^  '      by  ail  individual.     It  establishes  that  of   all  the  class  of  agencies, 

^l^iw-<.,         public  or  private,  whether  acting  as  officers  whose  powers  are  created 

^(^:^j,^,s.^  by  statute  or  by  other  corporations  or  by  individuals,  and  whether 

the    subject-matter   relates  to  duties  imposed  by  the  nation,  or  the 

State,  or  by  private  corporations,  or  by  individuals,  on  this  one  class 

of  agents,  and  in  regard  to  the  exercise  of  this  one  class  of  powers 

alone,  must  full,  absolute,  aud  uncontrollable  authority  be  conferred 

on  them,  or  none.     In  reference  to  municipal  bonds  alone,  the  law  is, 

that  no  authority  to  issue  them  can  be  given  which  is  capable  of  any 

effectual  condition  or  limitation  as  to  its  exercise. 

The  power  of  taxation,  which  has  repeatedly  been  stated  by  this 
court  to  be  the  most  necessary  of  all  legislative  powers,  and  least 
capable  of  restriction,  may  by  positive  enactments  be  limited,  ^f 
the  constitution  of  a  State  should  declare  that  no  tax  shall  be  levied 
exceeding  a  certain  per  cent  of  the  value  of  the  property  iaxed,^ffly 
statute  imposing  a  larger  rate  would  be  void  as  to  the  excess^  I? 
the  legislature  should  say  that  no  municipal  corporation  should  assess 
a  tax  beyond  a  certain  per  cent,  the  courts  would  not  hesitate  to  pro- 
nounce a  levy  in  excess  of  that  rate  void. 

But  when  the  legislature  undertakes  to  limit  the  power  of  creating 
a  debt  by  these  corporations,  which  will  require  a  tax  to  pay  it  in 
excess  of  that  rate  of  taxation,  this  court  says  there  is  no  power  to 
do  this  effectually.  No  such  principle  has  ever  been  applied  by  this 
court,  or  by  any  other  court,  to  a  State,  to  the  United  States,  to  pri- 
vate corporations,  or  to  individuals.  I  challenge  the  production  of  a 
case  in  which  it  has  been  so  applied. 


HUMBOLDT   TOWNSHIP   V.    LONG.  487 

In  the  Floyd  Acceptance  Cases^  7  Wall.  666,  in  which  the  Secre- 
tary of  War  had  accepted  time-drafts  drawn  on  him  by  a  contractor, 
which,  being  negotiable,  came  into  the  hands  of  bona  fide  purchasers 
before  due,  we  held  that  they  were  void  for  want  of  authority  to 
accept  them.  And  this  case  has  been  cited  by  this  court  more  than 
once  without  question.  No  one  would  think  for  a  moment  of  holding 
that  a  power  of  attorney  made  by  an  iudividual  cannot  be  so  limited 
as  to  make  any  one  dealing  with  the  agent  bound  by  the  limitation, 
or  that  the  agent's  construction  of  his  power  bound  the  principal. 
Nor  has  it  ever  been  contended  that  an  otiicer  of  a  private  corpora- 
tion can,  by  exceeding  his  authority,  when  that  authority  is  express, 
is  open  and  notorious,  bind  the  corporation  which  he  professes  to 
represent. 

The  simplicity  of  the  device  by  which  this  doctrine  is  upheld  as  toj^-^v».~-.-a-wir' 
municipal  bonds  is  worthy  the  admiration  of  all  who  wish  to  profit!  J  il*-^*^ 
by  the  frauds  of  municipal  ofiicers.  t^l^rsA-^-O'Vr 

It  is,  that  wherever  a  condition  or  limitation  is  imposed  upon  the  Vvv-^.'vv^  ^ 
power  of  these  officers  in  issuing  bcinds,  they  are  the  sole  and  final 
judges  of  the  extent  of  those  powers.  If  they  decide  to  issue  them, 
the  law  presumes  that  the  conditions  on  which  their  powers  depended i 
existed,  or  that  the  limitation  upon  the  exercise  of  the  power  has 
been  complied  with;  and  especially  and  particularly  if  they  make  a 
false  recital  of  the  fact  on  which  the  power  depends  in  the  paper 
they  issue,  thia  false  recital  has  the  effect  of  creating  a  power  which 
had  no  existence  without  it. 

This  remarkable  result  is  always  defended  on  the  ground  that  the 
paper  is  negotiable,  and  the  purchaser  is  ignorant  of  the  falsehood,  '^^-''^~**=» 
But  in  the  Floyd  Acceptance  Cases  this  court  held,  and  it  was  ueces-^     Ck»  /^^ 
^ary  to  hold  so  there,  that  the  inquir}^  into  the  authority  by  which  '^^-J-'C^'Y^' i 
negotiable  paper  was  i&sueJ  was  just  the  same  as  if  it  were  not  aiego-     ^^—  c   ^  '  ■^ 
tiable,  and  that  if  no  such  authority  existed.  it.could  nut  be  aided  bj^ 
giving  the  paper  that  form.     In   County  Bond  Cases  it  seems  to  be 
otherwise. 

In  that  case  the  court  held  that  the  pai'ty  taking  such  paper  was 
bound  to  know  the  law  as  it  affected  the  authority  of  the  officer  who 
issued  it.  In  County  Bond  Cases,  while  this  principle  of  law  is  not 
expressly  contradicted,  it  is  held  that  the  paper,  though  issued 
without  authority  of  law,  and  in  opposition  to  its  express  provisions, 
is  still  valid. 

There  is  no  reason,  in  the  nature  of  the  condition  on  which  the 
power  depends  in  these  cases,  why  any  purchaser  should  not  take 
notice  of  its  existence  before  he  buys.  The  bonds  in  each  case 
were  issued  at  one  time,  as  one  act,  of  one  date,  and  in  payment  of 
one  subscription.  All  this  was  a  matter  of  record  in  the  town  where 
it  was  done. 

So,  also,  the  valuation  of  all  the  property  of  the  town  for  the  taxa- 
tion of  the  year  before  the  bonds  were  issued  is  of  record  both  in  thai 


488  HUMBOLDT   TOWNSHIP   V.   LONG, 


iTv.o>*  t^^  >  y  town  and  in  the  office  of  the  clerk  of  the  county  in  which  the  town 
^^  I    is   located.     A    purchager    had    but   to   write  to    tJia_tUffiiisliip-derk 

'^         \      I   or  the   county-clerk  to  kuow  precisely  the    amount  of_.the    issue  of, 
V^^^A^  '^1  bonds    and  the  value  of  the  taxable  property  within  the  township. 
jyjJ^/\,^  .     I  In   the^  matter  of    a  power  depending  on  these  facts,   in  any  other 
»  <  class  of   cases,   it  would  be  held   that,  before   buying  these  bonds, 

the   purchaser   must   look  to  those  matters  on  which  their  validity 
depended. 

They  are  all  public,  all  open,  all  accessible,  —  the  statute,  the 
ordinance  for  their  issue,  the  latest  assessment-roll.  But  in  favor 
of  a  purchaser  of  municipal  bonds  all  this  is  to  be  disregarded,  and 
a  debt  contracted  without  authority,  and  in  violation  of  express 
statute,  is  to  be  collected  out  of  the  property  of  the  helpless  man 
who  owns  any  in  that  district. 

I  say  helpless  advisedly,  because  these  are  not  his  agents.  They 
are  the  officers  of  the  law,  appointed  or  elected  without  his  consent, 
acting  contrary,  perhaps,  to  his  wishes. 

Surely  if  the  acts  of  any  class  of  officers  should  be  valid  only  when 
done  in  conformity  to  law,  it  is  those  who  manage  the  affairs  of 
towns,  counties,  and  villages,  in  creating  debts  which  not  they,  but 
the  property-owners,  must  pay. 

The  original  case  on  which  this  ruling  is  based  is  Knox  County  v. 

Aspi?iwaU,  21  How.  539.     It  has,  I  admit,  been  frequently  cited  and 

followed    in   this    court   since    then,   but  the  reasoning  on  which   it 

was  founded  has  never  been  examined  or  defended  until  now:  it  has 

simply  been  followed.     The  case  of  the  Town  of  Coloma  v.  Eaoes^ 

92  U.  S.  484,  is  the  first  attempt  to  defend  it  on  principle  that  has 

ever  been  made.     How  far  it  has  been  successful  I  will  not  undertake 

to  say.     Of  one  thing  I  feel  very  sure,  that  if  the  English  judges  who 

decided  the  case  of    The  Roycd  British  Bank  v.  Tar^JMiMd,  on  the 

authority  of  which  Knox  Count)j  v.  AspiiiwaU  was  based,  were  here 

to-day,  they  would  be  filled  with  astonishment  at  this  result  of  their 

decision. 

^f  ix^\  The  bank  in  that  case  was  not  a  corporation.     It  was  a  joint-stock 

L    CJ^^'i    company  in  the  nature  of  a  partnership.     The   action  was    against 

mA/^  "v-*^  \   ^jjg  manager  as  such,  and  the  question  concerned  his  power  to  borrow 

w-*iii^dr^    monej'.     This  power  depended  in  this  particular  case  on  a  resolution 

of  the  company.     The  charter  or  deed  of  settlement  gave  the  power, 

\\.      and,  when  it  was  exercised,  the  court  held  that  the  lender  was  not 


'\) 


jD    ^         bound  to  examine  the  records  of  the  company  to  see  if  the  resolution 

-^--^^^~^'t    had  been  legally  sufficient. 

t  j\JUO^^  •  That  was  a  private  partnership.  Its  papers  and  records  were  not 
open  to  public  inspection.  The  manager  and  directors  were  not  offi- 
cers of  the  law,  whose  powers  were  defined  by  statute,  nor  was  the 
existence  of  the  condition  on  which  the  power  depended  to  be  ascei'- 
tained  by  the  inspection  of  public  and  official  records  made  and  kept 
by  officers  of  the  law  for  that  very  purpose. 


-^ 
»AV 


BANK   OF   TOLEDO   V.    TOKTER   TOWNSHIP   TRUSTEES. 


489 


In  all  these  material  circumstances  that  case  differed  widely  from 
those  now  before  us. 

It  is  easy  to  saj',  and  looks  plausible  when  said,  that  if  municipal 
corporations  put  bonds  on  the  market,  they  must  pay  them  when  they 
become  due. 

But  it  is  another  thing  to  say  that  when  an  officer  created  by  the 
law  exceeds  the  authority  conferred  upon  him,  and  in  open  violation 
of  law  issues  these  bonds,  the  owner  of  property  lying  within  the 
corporation  must  pay  them,  though  he  had  no  part  whatever  in  their 
issue,  and  no  power  to  prevent  it. 

This  latter  is  the  true  view  of  the  matter.  As  the  corporation  could 
only  exercise  such  power  as  the  law  coufeiTedy  the  is-'niTTg  of  the 
bonds  was  not  the  act  of  the  corporation.  It  is  a  false  assumption  to 
_Bay  that  the  corporation  put  them  on  the  market. 

If  one  of   two  innocent  persons  must  suffer  for  the  unauthorized! 
act  of  the  township  or  county  officers,  it  is  clear  that  he  who  could,  I 
before  parting  with  his    money,  have   easily  ascertained    that   they  1 
were  unauthorized,  should  lose,  rather  than  the  property-holder,  who  i-       _.  *-       ] 
might  not  know  any  thing  of  the  matter,  or,  if  he  did,  had  no  power  (£?^      .^'i, 
to  prevent  the  wrong.  'io-vOiVrvy' 

P^-'Sf^THERN  BANK  OF   TOLEDO  v.   PORTER  TOWNSHIP 

^.^  W^-'^.^^n'-J-^       TRUSTEES. 


^^^^^-->^^'"  '^^^-     no  C7.  5.  608.x 

^•^^  T^ROR  to  U.  S.  Circuit  Court  for  Northern  District  of  Ohio. 


Ver- 


dict below  for  defendants. 


r^^l^    This  was  an  action  upon  bonds  purporting  to  be  iBsued  by  Porter 


^j-*-^ 


Township  in  payment  of  a  subscription  to  the  stock  of  the  Spring- 
field, Mount  Vernon,  and  Pittsburgh  R.  R.  Co.  B}^  the  charter  of  said 
'•'^^^companj',  granted  March  21st,  1850,  power  was  given  to  the  county 
■^^^^^J^T-Sommissioners  to  subscribe  for  stock  if  authorized  by  vote  of  the 
'  •  electors ;  and,  if  the  county  commissioners  should  not  be  authorized 
c  4^  (by  such  a  vote,  then  the  township  trustees  were  empowered  to  sub- 
-.  K  scribe  if  authorized  by  vote  of  the  qualified  voters  of  the  township. 
'"'^  Up  to  March  25th,  1851,  neither  Delaw-are  County,  nor  Porter 
V  \i  Township  in  Delaware  County,  had  subscribed,  or  voted  to  subscribe 
J         to  the  stock  of  the  railroad  company. 

....f^-^  By  an  act  passed  March  25th,  1851,  county  commissioners  of  the 
f.;3,<j^w*everal  counties,  through  or  into  which  the  Springfield  and  Mans- 
field Railroad  shall  be  located,  were  authorized  to  cause  the  question 
^"'^  of  subscription  provided  for  in  the  act  of  March  21st,  1850,  "  to  be 
y^i  Bubmitted  to  the  qualified  voters  of  their  respective  counties,  at  a 
''^'''^^ special  election,  to  be  by  them  called  for  that  purpose,  at  any  time 

\^  ^^ajv         1  Statement  abridged.     Portions  of  opinion  omitted.  —  Ed. 


\,xX-^ 


490 


BANK   OF   TOLEDO   V.    POETEK   TOWNSHIP   TRUSTEES. 


>jw-- 


theveafter,  having  first  given  twent}^  days'  previous  notice;  "  further, 
that  "■  if  the_commissiuuers  of  any  of  the  counties  aforesaid  shall  iic^i!,^ 
be  authorized  by  the  vote  as  aforesaid  to  subscribe  to  the  capital 
stock  of  said  company  on  behalf  of  their  respective  counties,  then, 
and  in  that  case,  the  question  of  subscription  by  township  trustees 
provided  for  in  the  same  act  incorporating  said  railroad  company 
shall  be  submitted  to  the  people  of  the  respective  townships,  at  a 
special  election,  to  be  called  as  provided  for  in  the  first  section  of  this 
act "  —  such  elections  to  be  conducted  in  all  respects  in  the  same 
manner  provided  for  in  the  charter  of  the  company,  except  as  modified 
by  the  sai4  act  of  March  25th,  1851. 

On  the  loth  day  of  April,  1851,  the  commissioners  of  Delaware 
County,  Ohio,  passed  an  order  submitting  to  the  voters  of  that  county, 
at  a  special  election  to  be  held  on  the  17th  day  of  June  thereafter,  a 
proposition  to  subscribe  the  sum  of  $50,000  to  the  capital  stock  of  the 
Springfield  and  Mansfield  Railroad  Company,  a  corporation  created 
under  the  laws  of  that  State,  and  whose  name  was  subsequently 
changed  to  that  of  the  Springfield,  Mount  Vernon  and  Pittsburgh 
Railroad  Company.  This  proposition  was  approved  by  the  electors, 
and  subsequently,  August  4th,  1851,  the  county  commissioners  made 
a  subscription  of  the  amount  voted,  payable  in  bonds  of  the  county. 

•  ••••••• 

After  the  vote  in  favor  of  a  county  subscription  of  $50,000,  and 
two  days  before  the  formal  subscription  in  its  behalf  by  the  county 
commissioners,  that  is,  on  the  2d  day  of  August,  1851,  the  trustees 
of  Porter  Township,  in  Delaware  County,  passed  an  order  submitting 
to  the  voters  of  that  township,  at  a  special  election  to  be  held  on 
the  30th  day  of  August  thereafter,  a  proposition  for  a  subscription  of 
not  exceeding  §10,000  and  not  less  than  $8,000  to  the  capital  stock 
of  the  same  company,  payable  in  township  bonds,  upon  the  condition 
that  the  road  should  be  permanently  located  and  established  through 
that  township.  The  proposition  was  approved  by  the  voters,  and 
subsequently,  on  May  6th,  1853,  township  bonds  for  the  amount 
voted  with  interest  coupons  attached  were  issued.  They  were  made 
payable  to  the  railroad  company  or  its  assignees,  and  were  in  the 
customary  form  of  negotiable  municipal  bonds.  Each  one  recited 
that  it  was  "  issued  in  part  payment  of  a  subscription  of  one  hundred 
and  sixty  shares  of  $50  each  to  the  capital  stock  of  the  said  Spring- 
field, Mount  Vernon  and  Pittsburgh  Railroad  Compau}',  made  by  the 
said  township  of  Porter  in  pursuance  qf^the  provisions  of  the  several 
acts  of  the  general  assembl}'  of  the  State  of  Ohio  and  qf  a..viiie_pl-the 
qualified  electors  of  said  township  of  Porter  taken  in  pursuance 
thereof." 


In  behalf  of  the  plaintiff  in  erroi-,  the  present  holder  of  the  bonds, 
it  is  claimed  that  there  was  statutory  authority  for  their  issue,  and 


BANK   OF   TOLEDO   V.   PORTER   TOWNSHIP   TRUSTEES.  491 

that,  apart  from  any  question  of  such  authority,  the  township  1^ 
estopped  by  their  recitals,  and  by  numerous  payments  of  annual  in- 
terest, from  disputing  its  liabilit3\ 

E.   TV.  Kittre(l(/ej  for  plaintitf  in  error. 

W.  M.  Ramsey^  for  defendant  in  error. 

Harlan,  J. 

The  general  assembly  of  Ohio,  it  must  be  presumed,  knew  at  the 
passage  of  the  act  of  March  25th,  1851,  what  particular  counties  and 
townships  had  then  made  subscriptions  to  the  stock  of  this  railroad 
company.     That  act  was  passed  with  reference  to  the  situation  as  it 
actually  was.     When,  therefore,  upon  the  basis  of  non-authorization 
of  the  commissioners  to  make  a  county  subscription,  it  was  provided, 
in  the  act  of  March  25th,  1851,  that  "  then,  and  in  that  case"  towh-^ 
ships  might  subscribe,  it  must  have  been   intended  that  the  authoritv" 
of  any  township,  which  had  not  fJtcn  acted,  to  subscribi.'  r-hould  exist 
onfy  wliei't',  al'tcr  the  passnge  of  the_lattL'r  act,  a  county  subscription 
had  "been  negatived  either  by  a  vote  of  the  people  or  by  the  refusal 
or  failure  of  the  commissioners  w'ithin  a  reasonable  time  to  submit  i 
the  que^stion  to  a  popular  vote.     If  this  ^  not  so,  then  Porter  Town"  1  '^ 

sBTp  would  have  been  authorized  in  its  discretion  to  vote  on  a  propo- 
sition to  subscribe  either  at  the  annual  election  in  April,  1851,  or  at 
any  special  election  thereafter  held,  notwithstanding  the  county  may 
have  previously  made  a  subscription.  But  such  we  cannot  suppose 
to  be  a  correct  interpretation  of  the  statute.  Consequent!}',  from  and 
after  March  25th,  1851,  it  was  apparent  from  the  terms  of  the  act  of 
that  date  that  Porter  Tow-nship  had  no  legal  authorit}'  to  make  a 
subscription  of  stock,  except  in  the  contingency  —  which  the  town- 
ship could  not  control,  but  of  which  it  and  all  others  were  bound  to 
take  notice  —  that  the  commissioners  had  not  been  authorized  to  sub- 
scribe for  the  county.  So  far  from  that  contingency  ever  arising, 
the  commissioners  (before  the  township  election  was  called)  had 
been  authorized  by  popular  vote  to  subscribe,  and  they  did  in  fact  ^  . 

subscribe,  the  sum  of  §50,000.     It  cannot,  therefore,  be  said  that  the  0  ^^^*'^|^'''Y^ 
commissioners  were  not  authorized  by  a  vote  of  the  county  to  subscribe        tf-w/JCU 
atthe  time   Porter   Township  voted;    consequently',  the  latter  was! 
without  legal  authority  to  make  a  subscription.     This  conclusion  is' 
satisfactory  to  our  minds,  and  is,  besides,  sustained  by  the  decision 
of  the  Supreme  Court  of  Ohio  in  Hojrple  v.  Trustees  of  Brown  Town- 
ship in  Delaware  County.,  13  Ohio  St.  311,  reaffirmed  in  lioirple  v. 
Hippie^  33  Ohio  St.  116.  1        i   - 

It  is,  however,  contended,  that  by  the  settled  doctrines  of  this  '  '  '^*'^-*-*^ 
court,  the  township  is  estopped  by  the  recitals  of  the  bonds  in  suit,  f'^'^^^^TO^ 
to  make  its  present  defence.  The  bonds,  upon  their  face,  purport  to  A«-^ /JXa 
have  been  issued  "  in  pursuance  of  the  provisions  of  the  several  acts  i 
of  the  general  assembly  of  the  State  of  Ohio,  and  of  a  vote  of  the  A^^'^M'f 
qualified   electors    in   said   township  of   Porter,  taken  in  Duisuance 


492  BANK   OF   TOLEDO   V.   POKTER   TOWNSHIP   TKUSTEES. 

thereof."  These  recitals,  counsel  argue,  import  a  compliance,  in  afl 
res£efits,  with  the  law,  and,  therefore,  the  township  will  not  be 
allowed,  against  a  bona  fide  holder  for  value,  to  say  that  the  circum- 
stances did  not  exist  which  authorized  it  to  issue  the  bends.  It  is 
not  to  be  denied  that  there  are  general  expressions  in  some  former 
opinions  which,  apart  from  their  special  facts,  would  seem  to  afford 
support  to  this  proposition  in  the  general  terms  in  which  it  is  pre- 
sented. But  this  court  said  in  Cohens  v.  Vivginia^  6  Wheat.  264, 
and  again  in  Carroll  v.  Lessee  of  Carroll,  16  How.  275,  287,  that  it 
was  "  a  maxim  not  to  be  disregarded  that  general  expressions,  in 
every  opinion,  are  to  be  taken  in  connection  with  the  case  in  which 
those  expressions  are  used.  If  they  go  beyond  the  case,  they  may 
be  respected,  but  ought  not  to  control  the  judgment  in  a  subsequent 
suit  when  the  very  point  is  presented  for  decision."  An  examination 
of  the  cases,  in  which  those  general  expressions  are  found,  will  show 
that  the  court  has  never  intended  to  adjudge  that  mere  recitals  by 
the  officers  of  a  municipal  corporation  in  bonds  issued  in  aid  of  a 
railroad  corporation  precluded  an  inquiry,  even  where  the  rights  of  a 
bona  fide  holder  were  involved,  as  to  the  existence  of  legislative 
authority  to  issue  them. 

A  reference  to  a  few  of  the  adjudged  cases  will  serve  to  illustrate 
the  rule  which  has  controlled  the  cases  involving  the  validity  of 
municipal  bonds.  In  Commissloiiers  of  Knox  Comity  v.  Asplnwall^ 
21  How.  539,  power  was  given  to  county  commissioners  to  subscribe 
stock  to  be  paid  for  by  county  bonds,  in  aid  of  a  railroad  corporation, 
the  power  to  be  exercised  if  the  electors,  at  an  election  duly  called, 
should  approve  the  subscription.  It  was  adjudged  that  as  the  power 
.  existed,  and  since  the  statute  committed  to  the  board  of  commis- 
t^^-<y*^-^^'^  sioners  authority  to  decide  whether  the  election  was  properly  held,  and 


!oJ) 


!-*, 


a  AAr>*^^     whether  the  subscription  was  approved  by  a  majority  of  the  electors, 
^^^  the  recital  in  bonds  executed  by  those  commissioners,  that  they  were 

issued  in  pursuance  of  the  statute  giving  the  power,  estopped  the 
J  county  from  alleging  or  proving,  to  the  prejudice  of  a  bona  fide 
holder,  that  requisite  notices  of  the  election  had  not  been  given.  In 
Bissell  V.  City  of  Jeffersonville,  24  How.  287,  the  court  found  that 
there  was  power  to  issue  the  bonds,  and  that  after  they  were  issued 
a>s/  \  and  delivered  to  the  railroad  company  it  was  too  late,  as  against  a 

bona  fide  holder,  to  call  in  question  the  determination  of  the  facts, 
^w     which  the  law  prescribed  as  the  basis  of  the  exercise  of  the  power" 
l^  \f\  granted,  and  which  the  city  authorities  were  authorized  and  required" 

r^^?jr>  jto  determine  before  bonds  were  issued. 

Probably  the  fullest  statement  of  the  settled  doctrine  of  this  court 
is  found  in  Town  of  Coloma  v.  Eaves,  92  U.  S.  484.  In  that  case 
the  authority  to  make  the  subscription  was  made,  by  the  statute, 
to  depend  upon  the  result  of  the  submission  of  the  question  to  a 
popular  vote,  and  its  approval  by  a  majority  of  the  legal  votes  cast. 
But  whether  the  statute  in  these  particulars  was  complied  with,  was 


Vv    U-'Xv-^ 


BANK   OF   TOLEDO   V.   PORTER   TOWNSHIP  TRUSTEES.  493 

left  to  the  decision  of  certain  persons  who  held  official  relations  with 
the  municipality  in  whose  behalf  the  proposed  subscription  was  to 
be  made.  It  was  in  reference  to  such  a  case  that  the  court  said: 
"  When  legislative  authority  has  been  given  to  a  municipality,  or  to 
its  officers,  to  subscribe  to  the  stock  of  a  railroad  company,  and  to 
issue  municipal  bonds  in  payment,  but  only  on  some  precedent  con- 
dition, such  as  a  popular  vote  favoring  the  subscription,  and  where 
it  may  be  gathered  from  the  legislative  enactment  that  the  officers^of 
tEe__mimTcrpality  were  invested  with  power  to  decide  whether  the 
condition  precedent  has  been  complied  with,  their  recital  that  it  has 
been,  made  in  the  bonds  issued  by  them  and  held  by  a  //o/m  jiJe  pur- 
cEaseijjLs^conclusive  of  the  fact  and  binding  upon  the  municipality  j^ 
for  the  recital  is  itself  a  decision  of  the  fact  by  the  appointed 
tribunal."  This  doctrine  was  reaffirmed  in  Buchanan  v.  Litclifield^ 
102  U.  S.  278,  and  in  other  cases,  and  we  perceive  no  just  ground  to 
doubt  its  correctness,  or  to  regard  it  as  now  open  to  question  in  this 
court. 

But  we  are  of  opinion  that  the  rule  as  thus  stated  does  not  support 
the  position  which  counsel  for  plaintiff  in  error  take  in  the  present   kj^^x^.-^..^^ 
case.     The  adjudged  cases,   examined  in  the  light  of   their  special  (j 

circumstances,  show  that  the  facts  which  ajmunicipal  corporation, .  ^i-Li-w  Vvn^« 
issuing  bonds  iii  aid  of  the  construction  of  a  railroad,  was  not  per-  ,i-^-oJCJ^  Oa 
mitted,  against  a  bona  jide  holder,  to  question,- in  face  of  a  recital  .'>V'-<Xs...o- 
in  the  bonds  of  their  existence,  were  those  connected  with  or  growing,  .-.oW-,^^ 
out  of  tTie  discharge  of  the  ordinary  duties  of  such  of  its  officer's  aat  ^v^j-*->-^ 
were  invested  with  authority  U)  execute  them,  and  which  the  statute!  ,,u^  jw-a^ 
conferring  the  power  made  it  their  duty  to  ascertain  and  determinej  (jv.c,^<t*,^ 
before  the  bonds  were    issued;    not  merely   for   themselves,  as   the"  ML*^ 

ground  of   their   own  action,   in  issuing  the  bonds,   but,  equally,  as  ' 
authentic  and  final  evidence  of  their  existence,  for  the  information 
and  action  of  all  others  dealing  with  them  in  reference  to  it.     Such  la    P'^'^-^  ^ 
not  the  case  before  us.     Had  the  statutes  of  Ohio  conferred  upon  a  '        (\^L« 
township  in  Delaware  County  authority  to  make  a  subscription  to  the  * 

stock  of  this  company,  upon  the  approval  of  the  voters  at  an  election 
previously  held,  then  a  recital,  by  its  proper  officers,  such  as  is  found 
in  the  bonds  in  suit,  would  have  estopped  the  township  from  proving 
that  no  election  was  in  fact  held,  or  that  the  election  was  not  called 
and  conducted  in  the  mode  prescribed  by  law;  for  in  such  case  it 
would  be  clear  that  the  law  had  referred  to  the  officers  of  the  town- 
ship, not  only  the  ascertainment,  but  the  decision  of  the  facts 
involved  in  the  mode  of  exercising  the  power  granted.  Iiut  in  this 
case,  as  we  have  seen,  power  in  townships  to  subscribe  did  not  come 
into  existence,  that  is,  did  not  exist,  except  where  the  county  com- 
missioners had  not  been  authorized  to  make  a  subscription.  "Whether 
they  had  not  "oeen  so  authorized,  that  is,  whether  the  question  of 
subscription  had  or  not  been  submitted  to  a  county  vote,  or  whether 
the  county  commissioners  had  failed  for  so  long  a  time  to  take  the 


494 


BANK    OF   TOLEDO   V.    PORTER   TOWNSHIP    TRUSTEES. 


AXy^^yX*^"^ 


sense  of  the  people  as  to  show  that  they  had  not,  within  the  meaning 
of  the  law,  been  authorized  to  make  a  subscription,  were  matters  with 
which  the  trustees  of  the  township,  in  the  discharge  of  their  ordinary 
duties,  had  no  official  connection,  and  which  the  statute  had  not  com- 
mitted to  their  final  determination.     Granting  that  the  recital  in  the 
bonds  that  they  were  issued  "  in  pursuance  of  the  provisions  of  the 
several  acts  of  the  general  assembly  of  Ohio,"  is  equivalent  to  an 
express  recital  that  the  county  commissioners  had  not  been  authorized 
by  a  vote  of  the  county  to  subscribe  to  the  stock  of  this  company, 
and  that,  consequently,  the  power  conferred  upon  the  township  was 
brought  into  existence,  still  it  is  the  recital  of  a  fact  arising  out  of 
the  duties  of  county  officers,  and  which  the  purchaser  and  all  others 
must  be  presumed  to  know  did  not  belong  to  the  township  to  deter- 
,ii:ine,  so  as  to  confer  or  create  power  which,  under  the  law,  did  not 
•exist.     In  the  view  we  have  taken  of  this  case,  McClure  v.  Toivnship 
■'  of  Oxford,  04  U.  S.  429,  is  instructive.     That  was  a  case  of  munici- 
pal subscription  to  a  railroad  corporation.     The  act  conferring  the 
^^     authority  provided  that  it  should  take  effect  (and,  therefore,  should 
not  be  a  law  except)  from  and  after  its  publication  in  a  particular 
newspaper.     Thirty  days'  notice  of  the  election  was  required.     But 
the  election  was  held  within  thirty  days  from  the  publication  in  the 
paper  named  in  the  act.     The  bonds  recited  that  they  were  issued 
in  pursuance  of  the  statute,  describing  it  by  the  date  of  its  passage, 
not  the  date  of  its  publication  in  the  newspaper  designated.     They 
showed  upon  their  face  that  the  election  was  held  April  8th,  1872, 
But  the  purchaser  was  held  bound  to  know  that  the  act  was  not  in  fact 
published  in  that  newspaper  until  March  21st,  1872;  that,  therefore, 
it  did  not   become  a  law  until  from  and  after  that  date.     He  was, 
consequently,   charged  with  knowledge  that  the   election  was   held 
upon  insufficient  notice.     The  bonds  were,  for  these  reasons,  declared 
to  be  not  binding  upon  any  township.     The  publication  of  the  act, 
plainly,  was  not  a  matter  Avith  which  the  township  trustees,  as  such, 
had  any  official  connection.     It  was  not  made  their  duty  to  have  it 
published.     The  time  of   publication  would  not   necessarily  appear 
upon  the  township  records;  but  publication  in  a  named  newspaper 
was,  as  the  face  of  the  act  showed,  vital,  not  simply  to  the  exercise 
but  to  the  very  existence  of  the  power  to  subscribe.     We  may  repeat 
here  what  was  said  in  Anthony  v.  Jasper  County^  101  U.  S.  693,  697, 
that  purchasers  of  municipal  bonds  "  are  charged  with  notice  of  the 
V  laws  of  the  State,  granting  power  to  make  tlie  bonds  they  find  on 

the  market.     This  we  have  always  held.     If  the  power  exists  in  the 
»      ,     municipality  the  bona  fide  holder  is  protected  against  mere  irregu- 
UaI^  Jarities  in  the  manner  of  its  execution;    but  if   there  is  a  want  of 
'^^^^^^        \ov!Qv  no  legal  liability  can  be  created."     So  here,  Porter  Township 
'  *      ^  "     is  estopped  by  the  recitals  in  the  bonds  from  saying  that  no  township 
election  was  held,  or  that  it  was  not   called    and  conducted  in  the 
Darticular  mode  required  by  law.     But  it  was  not  estopped  to  show 


y«^^>.X>"*-^ 


■vct^s' 


SUTLIFF   V.   LAKE    COUNTY    COMMISSIONERS.  495 

that  it  was  without  legislative  authority  to  order  the  e'ection  of  August 
30th,  I80I,  aud  to  issue  the  bonds  in  suit.  The  question  of  legislative \>>*^  * 
autliority  in  a  municipal  corporation  to  issue  bonds  in  aid  of  a  rail- 
road company  cannot  be  concluded  by  mere  recitals;  but  the  power 
existing,  the  municipality  may  be  estopped  by  recitals  to  prove 
irregularities  in  the  exercise  of  that  power;  or,  when  the  law  pre-  ' 
scribes  conditions  upon  the  exercise  of  the  power  granted,  and  com- 
mits to  the  otticers  of  such  municipality  the  determination  of  the 
question  whether  those  conditions  have  been  performed,  the  corpora- 
tion will  also  be  estopped  by  recitals  which  import  such  performance.  ,  \ 

A      The  judgment  is  affirmed.  ■'  \   ~l^ 


HTri^^ 


"0^,^^  SUTLIFF  V.   LAKE   COUNTY   COMMISSIONERS. 

■:^/PC  ''df^^  1893.     147  U.  S.  230.1 

A*^^^    This  was  an  action  brought  in  the  Circuit  Court  of  the  United 

'^    States  for  the  District  of  Colorado  by  a  citizen  of  Connecticut  against 

the   county   of   Lake,   a   municipal   corporation    of   Colorado,    upon 

"^    t\  coupons  for  interest  of  six  bonds  for  80OO  each,  part  of  a  series  of 

^    ^ -  '     '    '  -^ 


^ 
> 


ten  bonds,  issued  by  the  county  on  July  1,  1881,  payable  to  bearer 
in  twenty  years,  and  redeemable  at  the  pleasure  of  the  county  after 
ten  years,  and  containing  this  recital: 
V~  "  This  bond  is  one  of  a  series  of  five  thousand  dollars,  which  the 
^^AN    ]3Qr^^.(;}  Qf  county  commissioners  of  said  county  have  issued  for  the 
^^'  purpose  of  constructing  roads  and  bridges,  l)y  virtue  of  and  in  com- 
■^T     pliance   with   a  vote  of   a  majority  of   the  qualified  voters  of  said 
j^<»^  county,  at  an  ejection  duly  held  on  the  7th  day  of   October,  a.  d. 
1879,  and  under  and  by  virtue  of  and  in  compliance  with  an  act  of 
the  general  assembly  of  the  State  of  Colorado,  entitled  '  An  act  con- 
cerning counties,  count}^  otlicers  and  county  government,  and  repeal- 
ing laws  on  these  subjects,'  approved  March  24,  a.  d.  1877,  and  it  is 
hereby  certified  that  all  the  provisions  of  said  act  have  been'fully 
complied  wlth"by  the  proper  officers  in  the  issuing  of  this  bond." 

One  defence  was  that  the  bonds  were  illegal  and  void,  becfiTtg'e'theyK   (\,^vs-t>->< 
increased  the  indebtedness  of  the  county  to  an  amount  in  excess  ofr 
"     the  limit   prescribed  by  certain   provisions  of  the  constitution  andj 
statutes  of  Colorado,  the  substance  of  which  is  stated  in  the  opinion. 
The  Circuit   Court  gave    judgment    for   the    defendant;    and    the 
plaintiff  took  the  case  by  writ  of  error  to  the  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit,  before  which  the  following  facts  were  made  to 
appear:  At  and  before  the  issue  and  sale  of  said  bonds,  the  county 
was  in  fact  indebted  to^aiTamount  greater  than  that  permitted  by 
the  limitation  contained  in  the  constitution  aud  statute  of  Colorado, 

1  Statement  abridged.  —  Ed. 


496  SUTLIFF  V.   LAKE   COUNTY   COMMISSIONERS. 

above  cited;  and  therefore,  as  a  matter  of  fact,  the  issue  of  said 
series  of  bonds,  and  the  issue  of  each  one  thereof  created  an  indebted- 
ness on  the  part  of  the  county  in  excess  of  the  constitutional  and 
statutory  limitation  applicable  to  said  county  at  the  date  of  the  issue 
of  said  bonds.  The  plaintiff  bought  six  of  said  series  of  bonds, 
paying  full  value  therefor,  relying  upon  the  recitals  in  the  bonds  con- 
"^^  tained,   and  without  making    any  examination    into   the   facts   that 

»-vO  .  1  might  appear  upon  the  records  of  the  county,  and  without  any  actual 

ti^-A'*-s>'e  knowledge    of  the   facts   other  than  such  knowledge  with  which  he 

|^<fv.  'might  be  held  chargeable  from  the  statements  in  the  bonds  and  the 

.  ^  constitution  and  statutes  of  Colorado. 

'    •  Upon  the  case  as  above  stated,  the  Circuit  Court  of  Appeals  certi- 

fied to  this  court  the  following  questions  and  propositions  of  law: 
^   '"^  "  1.    In  view  of  the  provisions  of  the  act  of  the  legislature  of  Colo- 

►    ^  rado,    approved    March    24,   1877,   providing    for   the   making   of   a 

Y  Inrw-^    public    record   of  the    indebtedness    and    financial    condition  of   the 
several  counties  in  said    State,  was  the  said  .John  Sutliff,   plaintiff 
herein,  when  about  to  purchase  the  bonds  sued  on  and  issued  under 
vx---        ^^"'the  provisions  of  said  act  of  March  24,  1877,  charged  with  the  duty 
"^  \  M^    of  examining  the  record  of  indebtedness  provided  for  in  said  act,  in 
order  to  ascertain  whether  the  bonds  he  proposed  to  purchase  were 
lawfully  issued  or  whether  the  issuance  thereof  did  not  increase  the 
indebtedness  of  the  county  beyond  the  constitutional  limit? 
'A-    ^        •'  2.    Do  the  recitals  found  in  said  bonds  estop  the  county  of  Lake, 
'' '  '        .        as  against  a  purchaser  thereof  for  value  before  maturity,  from  prov- 
.  \)  u.-j^^  c    jj^g  j^g  ^  defence  thereto  that  when  said  series  of  bonds  were  issued 
the   indebtedness  of   the   county  ah-eady  equalled   or   exceeded   the 
amount  of  indebtedness  which  the  county  could  legally  incur  under 
the  provisions  of  the  constitutional  limitation  already  cited?" 
John  McClure  for  plaintiff  in  error. 
H.  B.  Johnson  for  defendants  in  error. 

Gray,  J.     The   constitution,  as  well  as  the  statute,  of  Colorado 
'^^^'"^^^     absolutely  forbade  a  county  to  issue  bonds,  under  any  circumstances, 


to  such  an  amount  as  would  make  the  aggregate  amount  of  the  in- 
debtedness of  the  county  more  than  six  dollars  on  each  thousand  of 
the  assessed  valuation  if  the  taxable  property  in  the  county  was 
more  than  five  millions  of  dollars,  or  twelve  dollars  if  such  valuation 
was  less  than  five  and  more  than  one  million;  and  limited  the  right 
to  issue  bonds,  without  a  previous  vote  of  the  qualified  electors  of 
the  county,  to  half  of  such  rates. 
-  The  statute,  moreover,  required  the  county  commissioners,  in  sub- 

LL'-  -    mitting  the  question  to  a  vote  of  the  electors,  to  enter  of  record  an 

^*Vv>'^-*^  drder  specifying  the  amount  required  and  the  object  of  the  debt;  and 
^/A<^»-^  ^^^^  made  it  their  duty  to  publish,  and  to  cause  to  be  entered  on 
iJh'Ji  /  their  records,  open  to  the  inspection  of  the  public  at  all  times,  semi- 
■^-^'^^^  i|  annual  statements,  exhibiting  in  detail  the  debts,  expenditures  and 
■>^.  receipts  of  the  county  for  the  preceding  six  months,  and  striking  the 


SUTLIFF   V.    LAKE    COUNTY   COMMISSIONEES.  497 

balance  so  as  to  show  the  amouut  of  any  deficit  and  the  balance  in 
the  treasury. 

It  is  stated  in  the  certificate  upon  which  this  case  conies  before  us 
that  at  the  time  of  the  issue  of  the  bonds  in  question  the  defendant 
county  was  in  fact  indebted  beyond  the  constitutional  and  statutory 
limit,  and  the  issue  of  each  bond  therefore  created  a  debt  in  excess 
of  that  limit;  and  that  the  plaintiff  bought  the  bonds,  upon  the  faith 
of  the  recitals  therein,  and  without  making  any  examination  into  the 
facts  appearing  on  the  records  of  the  count}'. 

Upon  these  facts,  in  the  light  of  the  previous  decisions  of  this 
court,  it  is  clear  that  the  plaintiff,  although  a,  purchaser  for  value  and 
before  maturity  of  the  bonds,  was  clinrgt'd  with  the  duty  of  examin- 
TngHLhe  record  of  indebtedness  provided  for  in  the  statute  of  Colo- 
rado, in  order  to  ascertain  whether  the  bonds  increased  the  indebted- 
ness  of   the   county  ■  beyond   the   constitutional   limit;    and    that    the 


ness  oi  tne  county  beyond  the  constitutional  limit;  and  that  the  XrT/*-rO 
recitals  in  the  bonds  did  not  estop  the  county  to  prove  by  the  records  i  ^  ^"""C* 
of  the  assessment  and  the  indebtedness  that  the  bonds  were  issued  in  \  r^  >-»<^ 
violation  of  the  constitution.  '     ,q_^.^  g_ 

In  those  cases  in  which  this  court  has  held  a  municipal  corpora- 
tion to  be  estopped  by  recitals  in  its  bonds  to  assert  that  they  were-. ,  _Jyv. 
issued  in  excess  of  the  limit  imposed  by  the  constitution  or  statutes    '  ^^'-"v-v*' 
of  the  State,   the  statutes,  as  construed  b}"^  the  court,  left  it  to  the' 
officers  issuing  the  bonds  to  determine  whether  the  facts  existed  which    .1 
constituted  the  statutory  or  constitutional  condition  precedent,  and   V**^'  ''■^— *>^ 
did  not  require  those  facts  to  be  made  a  matter  of  public  record. 
Marci/  V.  Oswego,  92  U.   S.   637;  Hurnholdt  v.  Long,  92  U.  S.  642; 
Dixon  County  \.  Field,  111  U.  S.  83;  Lake  County  v.  Graham,  130 
U.  S.  674,  682 ;   Chaffee  County  v.  Potter,  142  U.  S.  355,  363. 

But  if  the  statute  expressly  requires  those  facts  to  be  made  a 
matter  of  public  record,  open  to  the  inspection  of  every  one,  there 
can  be  no  implication  that  it  was  intended  to  leave  that  matter  to  be 
determined  and  concluded,  contrary  to  the  facts  so  recorded,  by  the 
officers  charged  with  the  duty  of  issuing  the  bonds. 

Accordingl}',  in  Dixon  County  v.  Field,  above  cited,  which  arose 
under  an  article  of  the  constitution  of  Nebraska,  limiting  the  power 
of  a  county  to  issue  bonds  to  ten  per  cent  of  the  assessed  valuation 
of  the  county,  it  was  adjudged  that  a  county  issuing  bonds,  each 
reciting  that  it  was  one  of  a  series  of  $87,000  issued  under  and  by 
virtue  of  this  article  of  the  constitution  and  the  statutes  of  Nebraska 
upon  the  subject,  was  not  estopped  to  show  by  the  assessed  valuation 
on  the  books  of  public  record  of  the  county  that  the  bonds  were  in 
excess  of  the  constitutional  limit;  and  Mr.  Justice  Matthews,  deliv- 
ering the  unanimous  judgment  of  the  court,  fully  stated  the  grounds 
of  the  decision,  which  sufficiently  appear  by  the  following  extracts: 

"  If  the  fact  necessary  to  the  existence  of  the  authority  was  by 
law  to  be  ascertained,  not  officially  by  the  officers  charged  with  the 
execution  of  the  power,  but  by  reference  to  some  express  and  definite 


l^       .0 


498  SUTLIFF   V.    LAKE   COUNTY   COMMISSIONERS. 

record  of  a  public  character,  then  the  true  meaning  of  the  law  would 
be  that  the  authority  to  act  at  ail  depended  upon  the  actual  objective 
existence  of  the  requisite  fact,  as  shown  by  the  record,  and  not  upon 
its  ascertainment  and  determination  by  any  one;  and  the  consequence 
would  necessarily  follow,  that  all  persons  claiming  under  the  exercise 
of  such  a  power  might  be  put  to  the  proof  of  the  fact,  made  a 
condition  of  its  lawfulness,  notwithstanding  any  recitals  in  the 
instrument."     Ill  U.  S.  93. 

"  In  the  present  case  there  was  no  power  at  all  conferred  to  issue 
bonds  in  excess  of  an  amount  equal  to  ten  per  cent  upon  the  assessed 
valuation  of  the  taxable  property  in  the  county.  In  determining  the 
limit  of  power,  there  were  necessarily  two  factors:  the  amount  of 
the  bonds  to  be  issued,  and  the  amount  of  the  assessed  value  of  the 
property  for  purposes  of  taxation.  The  amount  of  the  bonds  issued 
was  known.  It  is  stated  in  the  recital  itself.  It  was  $87,000.  The 
holder  of  each  bond  was  apprised  of  that  fact.  The  amount  of  the 
assessed  value  of  the  taxable  property  in  the  county  is  not  stated; 
but,  ex  vi  termini^  it  was  ascertainable  in  one  way  only,  and  that 
was  by  reference  to  the  assessment  itself,  a  public  record  equally 
accessible  to  all  intending  purchasers  of  bonds,  as  well  as  to  the 
county  officers.  This  being  known,  the  ratio  between  the  two  amounts 
was  fixed  by  an  arithmetical  calculation.  No  recital  iuvolvijig  the 
amount  of  the  assessed  taxable  valuation  of  the  property  to  be  taxed 
^''<'  /for  the  payment  of  the  bonds  can  take  the  place  of  the  assessment 
^  ^  ,  I  itself,  for  it  is  the  amount,  as  fixed  by  reference  to  that  reco_rd^that 
*'^  '  \  Is  made  by  the  constitution  the  standard  for  measuring  the -limit  of 
the  municipal  power.  Nothing  in  the  v,ay  of  inquiry,  ascertainment 
>>**'^"  Jor  determination  as  to  that  fact  is  submitted  to  the  county  officers. 
They  are  bound,  it  is  true,  to  learn  from  the  assessment  what  the 
limit  upon  their  authority  is,  as  a  necessary  preliminary  in  the  exer- 
cise of  their  functions,  and  the  performance  of  their  duty;  but  the 
information  is  for  themselves  alone.  All  the  world  besides  must  have 
it  from  the  same  source,  and  for  themselves.  The  fact,  as  it  is 
recorded  in  the  assessment  itself,  is  extrinsic,  and  proves  itself  by 
inspection,  and  concludes  all  determinations  that  contradict  it." 
Ill  U.  S.  95. 

That  decision  and  the  grounds  upon  which  it  rests  were  approved 
and    affirmed    in   Lake    Counfy   v.    Graham  and   Chaffee  County  v. 
Potter,  above  cited,  each  of  which  arose  under  the  article  of  the  con- 
stitution of  Colorado  now  in  question,  but  under  a  different  statute, 
which  did  not  require  the  amount  of  indebtedness  of  the  county  to  be 
stated  on  its  records.     In  Lake  County  \.  Graham,  each  bond  showed 
on  its  face  the  whole  amount  of  bonds  issued,  and  the  recorded  valu- 
ation of  property  showed  that  amount  to  be  in  excess  of  the  con- 
stitutional limit;  and  for  this  reason,  as  well  as  because  the  bonds 
contained  no  recital  upon  that  point,  the  county  was  held  not  to  be 
estopped   to   plead   that   limit.     130   U.    S.    %^-2,  683.     In    Chaffee 
\xA'  ■     {-.-  .^)^  Ovl^c.,...    ...  ,.j^<-^<xJl  (_^-^    (k»JlA  JUv^.^    J, 

^-  :  .,   .       -ti^l^  AhL  'D-  J-  ^vsJ  g-g^y^iS^   (^^-^-^^ixU^  - 
V^  ;Xv^    u;S5Uv*>w    &^^^    ^^    vT'   ^-      ■     !     ^-.    cj-y^^. 


tA^ 


ryA^) 


GUNNISON   COUNTY   COMMISSIONERS    V.    ROLLINS. 


409 


County  V.  Potter,  on  the  other  hand,  the  bonds  contained  an  express 
recital  that  the  total  amount  of  the  issue  did  not  exceed  the  constitu- 
tional limit,  and  did  not  show  on  their  face  the  amount  of  the  issue, 
and  the  county  records  showed  only  the  valuation  of  property,  so 
that,  as  observed  by  Mr.  Justice  Lamar  in  delivering  judgment: 
"  The  purchaser  might  even  know,  indeed  it  may  be  admitted  that  he 
would  be  required  to  know,  the  assessed  valuation  of  the  taxable 
property  of  the  county,  and  yet  he  could  not  ascertain  by  reference  to 
one  of  the  bonds  and  the  assessment  roll  whether  the  county  had 
exceeded  its  power,  under  the  constitution,  in  the  premises."  142 
U.  S.  :63. 

The  case  at  bar  does  not  fall  within  Chaffee  County  v.  Potter,  and 
cannot  be  distinguished  in  principle  from  Dixon  County  v.  Field  or 
from  Lake  County  v.  Graham.  The  only  difference  worthy  of  notice 
is  that  in  each  of  these  cases  the  single  fact  required  to  be  shown 
by  the  public  record  was  the  valuation  of  the  property  of  the  county, 
"Tvhereas  here  two  facts  are  to  be  so  shown,  the  valuation  of  the  prop- 
erty, and  the  amount  of  the  county  debt.  But,  as  both  these  facts 
are  equall}'  required  by  the  statute  to  be  entered  on  the  public  records 
of  the  count}',  they  are  both  facts  of  which  all  the  world  is  bound  to 
take  notice,  and  as  to  which,  therefore,  the  county  cannot  be  con- 
cluded  by  any  recitals  in  the  bonds. 
Jt  folTou's   that  the  first  question  certified  must  he  answered  in  thi 

affirmative,  and  the  second  in  the  negative.      Ordered  accordingly. 


v^^ 


\^r^- 


GUN^ON   COUNTY   COMMISSIONERS   v.   ROLLINS. 


'g^^   Harlan, 


1899.     173  U.  S.  255. 

J.^     This  action  was  brought  by  E.  H.  Rollins  &  Sons,  a 

corporation  of  New  Hampshire,    to  obtain   a  judgment   against  the 

Board  of  Commissioners  of  Gunnison  County,  Colorado,  a  municipal 

*\      corporation  of  that  State,  for  the  amount  of  certain  coupons  of  bonds 

r^  issued  by  the  defendant  in  1882.     At  the  close  of  the  evidence  the  de- 

^  fendant  requested  a  peremptory  instruction  in  its  behalf.     The  Circuit 

Court  charged  the  jury  at  some  length,  but  concluded  with  a  direction 

>^to  find  a  verdict  for  the  defendant,  which  was  done,  and  a  judgment 

/^     in  its  favor  was  entered.     That  judgment  was  reversed  in  the  Circuit 

Court  of  Appeals,  and  the  case  is  here  upon  writ  of  certiofuri.     49 

t      U.  S.  App.  399. 


-^ 


>' 


The  answer  of  the  county  contained  a  general  dental  of  all  the  allega- 
tions of  the  complaint,  and  in  addition  set  out  eleven  aflirmative  de- 
fences, which  were  chiefly  based  upon  the  alleged  fact  that  the  county, 

1  Part  of  the  opinion  la  omitted.  —  Ed. 


i 


500  GUNNISON   COUNTY   COMMISSIONERS   V.   ROLLINS.     • 

in  issuing  the  bonds  set  fortli  in  the  complaint,  had  attempted  to  incur 
an  indebtedness  not  authorized  by  the  constitution  of  Colorado  or  by 
the  statute  referred  to  in  the  bonds. ^ 


Thd  bonds  to  which  were  attached  the  coupons  in  suit  recited  that 
they  were  issued  by  the  Board  of  County  Commissioners  "in  ex- 
change at  par  for  valid  floating  indebtedness  of  the  county  outstand 
ing  prior  to  September  2,  1882,  under  and  by  virtue  of  and  in  full 
conformity  with  the  provisions  of  an  act  of  the  General  Assembly 
of  the  State  of  Colorado,  entitled  '  An  act  to  enable  the  several  coun- 
ties of  the  State  to  fund  their  floating  indebtedness,'  approved  Feb- 
ruary 21,  1881;  "  that  "all  the  requirements  of  law  have  been  fully 
complied  with  by  the  proper  otticers  in  the  issuing  of  this  bond  ;  " 
that  the  total  amount  of  the  issue  did  "  not  exceed  the  limit  prescribed 
by  the  constitution  of  the  State  of  Colorado ;  "  and  that  such  issue  had 
been  authorized  by  a  vote  of  a  majority  of  the  duly  qualified  electors^ 
of  TneTount}',  voting  on  the  question  at  a  general  election  duly  held~in 
the  county  on  the  7th  day  of  November,  1882.  "~       — 

Do  such  recitals  estop  the  county  from  asserting  against  a  bona  fide 
holder  for  value  that  the  bonds  so  issued  created  an  indebtedness  in 
excess  of  the  limit  prescribed  by  the  constitution  of  Colorado?  An 
answer  to  this  question  can  be  found  in  former  decisions  of  this  court. 
It  is  necessary  to  advert  to  those  decisions,  particularly  those  in  which 
the  court  considered  the  effect  of  recitals  importing  compliance  with 
constitutional  provisions. 

In  Buchanan  v.  Litchfield,  102  U.  S.  278,  290,  292,  which  was  a  suit 
on  interest  coupons  of  municipal  bonds,  the  defence  was  made  that  the 
bonds  were  issued  in  violation  of  that  clause  of  the  constitution  of  the 
State  providing  that  "  no  county,  city,  township,  school  district  or 
other  municipal  corporation  shall  be  allowed  to  become  indebted  in 
any  manner  or  for  any  purpose  to  an  amount  including  existing  in- 
debtedness in  the  aggregate  exceeding  five  per  centum  on  the  value 
of  the  taxable  property  therein  to  be  ascertained  by  the  last  assess- 
ment for  state  and  county  taxes  previous  to  the  incurring  of  such 
indebtedness."  This  court  said :  "  As,  therefore,  neither  the  consti- 
tution nor  the  statute  prescribed  any  rule  or  test  by  which  persons 
contracting  with  municipal  corporations  should  ascertain  the  extent 
of  their  '  existing  indebtedness,'  it  would  seem  that  if  the  bonds  in 
question  had  contained  recitals  which,  upon  any  fair  construction, 
amounted  to  a  representation  upon  the  part  of  the  constituted  authorities 

!  of  the  city  that  the  requirements  of  the  constitution  were  met  —  that 
is,  that  the  city's  indebtedness,  increased  by  the  amount  of  the  bonds 

'in  question,  was  within  the  constitutional  limit —  then  the  city,  under 

^  The  Constitution  contained  a  clause  fixing  a  limit  to  county  indebtedness.  Tlie 
Btatute  provided  for  a  referendum  vote  of  taxpayers  on  the  issue  of  bonds.  —  Ed. 


GUNNISON   COUNTY   COMMISSIONERS   V.    ROLLINS. 


501 


the  decisions  of  this  court,  might  have  been  estopped  from  disputing  the 
truth  of  such  representations  as  against  a  honajide  holder  of  its  bonds. 
The  case  might  then,  perhaps,  have  been  brought  within  the  rule  an- 
nounced by  this  court  in  Town  of  Goloma  v.  Eaves,  92  U.  S.  484,  in 
which  case  we  said,  and  now  repeat,  that  '  where  legislative  authority 
has  been  given  to  a  municipality,  or  to  its  officers,  to  subscribe  for  the 
stock  of  a  railroad  company,  and  to  issue  municipal  bonds  in  payment, 
but  only  on  some  precedent  condition,  such  as  a  popular  vote  favoring 
the  subscription,  and  where  it  may  be  gathered  from  the  legislative  en- 
actment that  the  officers  of  the  municipality  were  invested  with  power 
to  decide  whether  the  condition  precedent  has  been  complied  with,  their 
recital  that  it  has  been,  made  on  the  bonds  issued  by  them  and  held  by 
a  bona  fide  purchaser,  is  conclusive  of  the  fact,  and  binding  upon  the 
municipality ;  for  the  recital  is  itself  a  decision  of  the  fact  by  the  ap- 
pointed tribunal'  So,  in  the  more  recent  case  of  Orleans  v.  Pratt,  99 
U.  S.  676,  it  was  said  that '  where  the  bonds  on  their  face  recite  the  cir- 
cumstances which  bring  them  within  the  power,  the  corporation  is  es- 
topped to  deny  the  truth  of  the  recital.'  "  Again  :  "  A  recital  that  the  I 
bonds  were  issued  under  the  authority  of  the  statute  and  in  pursuance 
of  the  city  ordinance,  did  not  necessarily  import  a  compliance  with  the 
constitution.  Had  the  bonds  made  the  additional  recital  that  they 
were  issued  in  accordance  with  the  constitution,  or  had  the  ordinance 
stated,  in  any  form,  that  the  proposed  indebtedness  was  within  the 
constitutional  limit,  or  had  the  statute  restricted  the  exercise  of  the 
authority  therein  conferred  to  those  municipal  corporations  whose  in- 
debtedness did  not,  at  the  time,  exceed  the  constitutional  limit,  there 
would  have  been  ground  for  holding  that  the  city  could  not,  as  against 
the  plaintiff,  dispute  the  fair  inference  to  be  drawn  from  such  recital 
or  statement  as  to  the  extent  of  its  existing  indebtedness." 

In  Northern  Bank  of  Toledo  v.  Porter  ToirnsJiip,  110  U.  S.  608,  616, 
619,  which  was  an  action  on  municipal  bonds,  and  involved  a  question 
respecting  the  conclusiveness  as  between  the  municipality  and  a  bona 
fide  holder  for  value  of  recitals  in  the  bonds  that  they  had  been  issued 
in  conformity  to  law,  the  court  referred  to  the  above  rule  established 
in  Toivn  of  Coloma  v.  Eaves,  and  said  :  "  We  are  of  opinion  that  the 
rule  as  thus  stated  does  not  support  the  position  which  counsel  for 
plaintiff  in  error  take  in  the  present  case.  The  adjudged  cases,  ex- 
amined in  the  light  of  their  special  circumstances,  show  that  the  facts 
which  a  municipal  corporation,  issuing  bonds  in  aid  of  the  construction 
of  a  railroad,  was  not  permitted,  against  a  bona  fide  holder,  to  ques- 
tion, in  face  of  a  recital  in  the  bonds  of  their  existence,  were  those 
connected  with  or  growing  out  of  the  discharge  of  the  ordinary  duties 
of  such  of  its  officers  as  were  invested  with  authority  to  execute  them, 
and  which  the  statute  conferring  the  power  made  it  their  duty  to  ascer- 
tain and  determine  before  the  bonds  were  issued ;  not  merely  for  them- 
selves, as  the  ground  of  their  own  action,  but,  equally,  as  authentic 
and  final  evidence  of  their  existence,  for  the  information  and  action  of 


502  GUNNISON   COUNTY   COMMISSIONERS   V.   ROLLINS. 

all  others  dealing  with  them  in  reference  to  it.  .  .  .  The  question  of 
legislative  authority  in  a  municipal  corporation  to  issue  bonds  in  aid 
of  a  railroad  company  cannot  be  concluded  by  mere  recitals ;  but  the 
power  existing,  the  municipality  may  be  estopped  by  recitals  to  prove 
irregularities  in  the  exercise  of  that  power;  or,  when  the  law  pre- 
scribes conditions  upon  the  exercise  of  the  power  granted,  and  com- 
mits to  the  officers  of  sucli  municipality  the  determination  of  the 
question  whether  those  conditions  have  been  performed,  the  corpora- 
tion will  also  be  estopped  by  recitals  wliich  import  such  performance." 
A  leading  case  on  this  subject  is  Dixon  Comity  v.  Field,  111  U.  S- 
83,  92-94,  which  involved  the  validity  of  bonds  issued  in  the  name  of 
Dixon  County,  Nebraska,  the  constitution  of  which  State  prescribed 
conditions  upon  which  donations  could  be  made  to  a  railroad  or  other 
work  of  internal  improvement  by  cities,  towns,  precincts,  municipali- 
ties or  other  subdivisions  of  the  State,  and  imposed  limitations  upon  the 
amount  thereof  and  upon  the  mode  of  creating  municipal  debts  of  that 
kind.  The  principal  question  was  as  to  the  conclusiveness  of  certain 
^fi  recitals  in  the  bonds  sued  on  in  that  case.     This  court  said :  "The 

estoppel  does  not  arise,  except  upon  matters  of  fact  which  the  cor- 
porate officers  had  authority  by  law  to  determine  and  to  certify.     It  is 
■j^^  'not  necessary,  it  is  true,  that  the  I'ecital  should  enumerate  each  partic- 

^^     v         ular  fact  essential  to  the  existence  of  the  obligation.     A  general  state- 
\/^^^  ment  that  the  bonds  have  been  issued  in  conformity  with  the  law  wiU. 

suffice,  so  as  to  embrace  every  fact  which  the  officers  making  the 
statement  are  authorized  to  determine  and  certify.  A  determination 
and  statement  as  to  the  whole  series,  where  more  than  one  is  involved, 
is  a  determination  and  certificate  as  to  each  essential  particular.  But 
it  still  remains  that  there  must  be  authority  vested  in  the  officers,  by 
law,  as  to  each  necessary  fact,  whether  enumerated  or  non-enumerated, 
''^fuM'-^^'^j  to  ascertain  and  determine  its  existence,  and  to  guarantee  to  those 
lt<-^  •  '  dealins;  with  them  the  truth  and  conclusiveness  of  their  admissions. 

In  such  a  case  the  meaning  of  the  law  grantmg  power  to  issue  bonds 
is,  that  they  may  be  issued,  not  upon  the  existence  of  certain  facts,  to 
be  ascertained  and  determined  whenever  disputed,  but  upon  the  ascer- 
tainment and  determination  of  their  existence,  by  the  officers  or  body 
designated  by  law  to  issue  the  bonds  upon  such  a  contingency.  This 
becomes  very  plain  when  we  suppose  the  case  of  such  a  power  granted 
,  to  issue  bonds,  upon  the  existence  of  a  state  of  facts  to  be  ascertained 
and  determined  by  some  persons  or  tribunal  other  than  those  author- 
ized to  issue  the  bonds.  In  that  case,  it  would  not  be  contended  that 
_^  a  recital  of  the  facts  in  the  instrument  itself,  contrary  to  the  finding  of 

those  charged  by  law  with  that  duty,  would  have  any  legal  effect.     So, 
'  if  the  fact  necessary  to  the  existence  of  the  authority  was  by  law  to  be 
i  ascertained,  not  officially  by  the  officers  charged  with  the  execution  of 
;  the  power,  but  by  reference  to  some  express  and  definite  record  of  a 
public  character,  then  the  true  meaning  of  the  law  would  be,  that  the 
authority  to  act  at  all  depended  upon  the  actual  objective  existence  of 


A; 


GUNNISOX    COUNTY   COMMISSIONERS    V.    ROLLINS.  503 

the  requisite  fact,  as  shown  by  the  record,  and  not  upon  its  ascertain- 
ment and  determination  by  any  one ;  and  the  consequence  would 
necessarily  follow,  that  all  persons  claiming  under  the  exercise  of 
such  a  power  might  be  put  to  proof  of  the  fact,  made  a  condition  of 
its  lawfulness,  notwithstanding  any  recitals  in  that  instrument  This 
principle  is  the  essence  of  the  rule  declared  upon  this  point,  by  this 
court,  in  the  well-considered  words  of  Mr.  Justice  Strong,  in  Coloma 
V,  Eaves,  92  U.  S.  484,  where  he  states  (p.  491)  that  it  is,  'where  it 
may  be  gathered  from  the  legislative  enactment  that  the  oflicers  of  the 
municipality  were  invested  with  the  power  to  decide  whether  the  con- 
dition precedent  has  been  complied  with,'  that  '  their  recital  that  it  has 
been,  made  in  the  bonds  issued  by  them  and  held  by  a  bona  fide  pur- 
chaser, is  conclusive  of  the  fact,  and  binding  upon  the  municipality; 
for  the  recital  is  itself  a  decision  of  the  fact  by  the  appointed  tribunal.' 
The  converse  is  embraced  in  the  proposition  and  is  equally  true,  ^_lf 
the  officers  authorized  to  issue  bonds,  upon  a  condition,  are  not  the 
appointed  tribunals  to  decide  the  fact,  which  constitutes  the  condition, 
"faieiFrecjtal  will  not  be  accepted  as  a  substitute  for  proof.  In  other 
words,  where  the  validity  of  the  bonds  depends  upon  an  estoppel, 
claimed  to  arise  upon  the  recitals  of  the  instrument,  the  question  being 
as  to  the  existence  of  power  to  issue  them,  it  is  necessary  to  establish 
that  the  officers  executing  the  bonds  had  lawful  authority  to  make  the. 
recitals  "and  to  make  them  conclusive.  The  very  ground  of  the  estop- 
pel is  that  the  recitals  are  the  official  statements  of  those  to  whom  the 
law  refers  the  public  for  authentic  and  final  information  on  the  subject." 
In  Lake  County  v.  Grahmn,  130  U.  S.  674,  C80,  G83-684,  the  ques- 
tion was  as  to  the  validity  of  certain  bonds  issued  by  Lake  County, 
Colorado,  under  the  very  statute  of  that  State  referred  to  in  the  bonds 
the  coupons  of  which  are  here  in  suit,  namely,  the  above  act  of  Febru- 
ary 21,  1881,  authorizing  the  several  counties  of  the  State  to  fund 
their  floating  indebtedness.  It  was  recited  in  each  of  the  bonds  sued 
on  in  that  case  that  they  were  issued  under  and  by  virtue  of  and  in  full 
compliance  with  that  act,  and  that  "all  the  provisions  and  requirements 
of  said  act  have  been  fully  complied  with  by  the  proper  officers  in  the  ^  X*4^^ 
issuing  of  this  bond."  No  one  of  the  bonds,  let  it  be  observed,  con- 
tained any  recital  that  it  was  issued  in  conformity  to  the  provisions  of 
the  state  constitution.  This  court  said:  "Nothing  is  better  settled 
than  this  rule  —  that  the  purchaser  of  bonds,  such  as  these,  is  held  to 
know  the  constitutional  provisions  and  the  statutory  restrictions  bear- 
ing on  the  question  of  the  authority  to  issue  them  ;  also  the  recitals  of 
the  bonds  he  buys;  while,  on  the  other  hand,  if  he  act  in  good  faith 
and  pay  value,  he  is  entitled  to  the  protection  of  such  recitals  of  facts 
as  the  bonds  may  contain.  In  this  case  the  constitution  charges  each 
purchaser  with  knowledge  of  the  fact  that,  as  to  all  counties  whose  as- 
sessed valuation  equals  one  million  of  dollars,  there  is  a  maximum  limit 
beyond  which  those  counties  can  incur  no  further  indebtedness  under 


504  GUNNISON   COUNTY   COMMISSIONERS   V.   EOLLINS. 

any  possible  conditions,  proviclecl,  that  in  calculating  that  limit,  debts 
contracted  before  tlie  adoption  of  the  constitution  are  not  to  be  counted. 
The  statute,  on  the  other  hand,  charges  the  purchaser  with  knowledge 
of  the  fact  that  the  county  commissioners  were  to  issue  bonds,  at  par, 
in  exchange  for  such  warrants  of  the  county  as  were  themselves  issued 
prior  to  the  date  of  the  first  publication  of  the  notice  provided  for ;  that 
the  only  limitation  on  the  issue  of  bonds  in  the  statute  was,  that  the 
bonds  should  not  exceed  in  amount  the  sum  of  the  county  indebted- 
ness on  the  day  of  notice  aforesaid  ;  that  while  the  commissioners  were 
empowered  to  determine  the  amount  of  such  indebtedness,  yet  the 
statute  does  not  refer  that  board,  for  the  elements  of  its  computation, 
to  the  constitution  or  to  the  standards  prescribed  by  the  constitution, 
but  leaves  it  open  to  tliera,  without  departing  from  any  direction  of  the 
statute,  to  adopt  solely  the  basis  of  the  county  warrants.  The  recitals 
of  the  bonds  were  merely  to  the  effect  that  the  issue  was  '  under,  and 
by  virtue  of,  and  in  full  compliance  with,'  the  statute;  'that  all  the 
provisions  and  requirements  of  said  act  have  been  fully  complied  with 
by  the  proper  officers  in  the  issuing  of  this  bond ;  '  and  that  the  issu- 
ing was  '  authorized  by  a  vote  of  a  majority  of  the  duly  qualified 
electors,'  etc. ;  no  express  reference  being  made  to  the  constitution, 
nor  any  statement  made  that  the  constitutional  requirements  had  been 
observed.  There  is,  therefore,  no  estoppel  as  to  the  constitutional 
question,  because  there  is  no  recital  in  regard  to  it.  Carroll  County  v. 
^fA^.    -^Smith,  111  U.  S.  556."     In  disposing  of  the  contention  that,   under 

'^ — —  ■  the  doctrines  of  certain  adjudged  cases,  the  county  was  estopped  to 

deny  that  the  bonds  were  issued  in  conformity  to  the  constitution,  the 
court  said  :  "The  question  here  is  distinguishable  from  that  in  the  cases 
relied  on  by  counsel  for  the  defendant  in  error.     In  this  case  the 
standard  of  validity  is  created  by  the  constitution.     In  that  standard 
two  factors  are  to  be  considered  ;  one  the  amount  of  assessed  value, 
LyrAf>o<^^      .  and  the  other  the  ratio  between  that  assessed  value  and  the  debt  pro- 
,^  n^^S-^y      posed.    These  being  exactions  of  the  constitution  itself,  it  is  not  within 
■i^v~  I  the  power  of  a  legislature  to  dispense  with  them,  either  directly  or  in- 

5 '  ''^.'-M  directly,  by  the  creation  of  a  ministerial  commission  whose  finding 
I  shall  be  taken  in  lieu  of  the  facts.  In  the  case  of  Sherman  County  v. 
Simons,  109  U.  S.  735,  and  others  like  it,  the  question  was  one  of 
estoppel  as  against  an  exaction  imposed  by  the  legislature ;  and  the 
holding  was,  that  the  legislature,  being  the  source  of  exaction,  had 
created  a  board  authorized  to  determine  whether  its  action  had  been 
complied  with,  and  that  its  finding  was  conclusive  to  a  bona  fide  pur- 
chaser. So  also  in  Oregon  v.  Jennings,  119  U.  S.  74,  the  condition 
violated  was  not  one  imposed  by  the  constitution,  but  one  fixed  by  the 
subscription  contract  of  the  people." 

This  brings  us  in  our  reference  to  the  authorities  to  the  important 
case  of  Chaffee  County  v.  Potter,  142  U.  S.  355,  363,  364,  366.  That 
was  an  action  upon  coupons  of  bonds  issued  by  Chaffee  County,  Col- 


1 


GUNNISON    COUNTY   COMMISSIONERS   V.    ROLLINS.  505 

orado,  under  the  act  of  February  21,  1881,  under  which  the  bonds  here 
in  suit  were  issued.  The  bonds  and  coupons  were  in  the  same  form  and 
contained  the  same  recitals  as  the  above  bonds  issued  by  Gunnison 
County,  and  were  of  like  date.  The  defence  in  part  in  the  Chaffee 
County  case  was  that  the  bonds,  and  each  of  them,  were  issued  in 
violation  of  the  constitution  of  the  State.  After  referring  to  the 
decision  in  Lake  County  v.  Graham  (the  bonds  in  which  did  not  con- 
tain any  express  recitals  as  to  the  constitutional  limit  of  indebtedness), 
and  stating  that  it  was  based  largely  on  the  ruling  in  Dixon  County  v. 
Field,  this  court  said:  "To  the  views  expressed  in  that  case  we  still 
adhere ;  and  the  only  question  for  us  now  to  consider,  therefore,  is : 
Do  the  additional  recitals  in  these  bonds,  above  set  out,  and  in  the 
absence  from  their  face  of  anything  showing  the  total  number  issued 
of  each  series,  and  the  total  amount  in  all,  estop  the  county  from 
pleading  the  constitutional  limitation  ?  In  our  opinion  these  two  fea- 
tures are  of  vital  importance  in  distinguishing  this  case  from  Lal.e 
County  \.  Graham  and  Dixon  County  v.  Field,  and  are  sufficient  to  oper- 
ate as  an  estoppel  against  the  county.  Of  course,  the  purchaser  of  bondsi  ^  ( 
in  open  market  was  bound  to  take  notice  of  the  constitutional  limitation' 
on  the  county  with  respect  to  indebtedness  which  it  might  incur.  But* 
when,  upon  the  face  of  the  bonds,  there  was  any  express  recital  that 
the  limitation  had  not  been  passed,  and  the  bonds  themselves  did  nqt_\  >^«'Ol«- 
sEow  that  it  had,  he  was  bound  to  look  no  further.  An  examination  \ 
of  any  particular  bond  would  not  disclose,  as  it  would  in  the  Lake 
County  case,  and  in  Dixon  County  v.  Field,  that,  as  a  matter  of  fact, 
the  constitutional  limitation  had  been  exceeded,  in  the  issue  of  the 
series  of  bonds.  The  purchaser  might  even  know,  indeed  it  may  be  1 
admitted  that  he  would  be  required  to  know,  the  assessed  valuation  of 
the  taxable  property  of  the  county,  and  yet  he  could  not  ascertain  by 
reference  to  one  of  the  bonds  and  the  assessment  roll  whether  the 
county  had  exceeded  its  power,  under  the  constitution,  in  the  premises. 
True,  if  a  purchaser  had  seen  the  whole  issue  of  each  series  of  bonds 
and  then  compared  it  with  the  assessment  roll,  he  might  have  been 
able  to  discover  whether  the  issue  exceeded  the  amount  of  indebted- 
ness limited  by  the  constitution.  But  that  is  not  the  test  to  apply  to  a 
transaction  of  this  nature.  It  is  not  supposed  that  any  one  person 
would  purchase  all  of  the  bonds  at  one  time,  as  that  is  not  the  usual  pi,*^,^. 
course  of  business  of  this  kind.  The  test  js  —  "What  does  each  indi- j  <.rw~ei  •^'^ 
vidual  bond  disclose?  If  the  face  of  one  of  the  bonds  had  disclosed  J  '■''  ^^  ■^''- 
tliaf,  as  a  matter  of  fact,  the  recital  in  it,  with  respect  to  the  constitu- 
tional limitation,  was  false,  of  course  the  county  would  not  be  bound 
by  that  recital,  and  would  not  be  estopped  from  pleading  the  in- 
validity of  the  bonds  in  this  particular.  Such  was  the  case  in  Lake 
County  V.  Graham  and  Dixon  County  v.  Fidel.  But  that  is  not  this 
case.  Here,  by  virtue  of  the  statute  under  which  the  bonds  were 
issued,  the  county  commissioners  zcere  to  determine  the  amount  to  le 


Uu-. 


506 


GUNNISON   COUNTY   COMMISSIONERS    V.   ROLLINS. 


issued,  which  was  not  to  exceed  the  total  amount  of  the  indebted- 
ness at  the  date  of  the  first  publication  of  the  notice  requesting  the 
holders  of  county   warrants  to  exchange   their  warrants   for  bonds, 


.3 


at  par.  The  statute,  in  terras,  gave  to  the  commissioners  the  deter- 
mination  of  a  fact,  tlial;~isV  whether  the  issue  of  bonds  was  in  accord- 
ance with  the  constitution  of  the  State  and  the  statute  under  wliicli 
they  were  issued,  and  required  them  to  spread  a  certiQcate  of  that 
{ determination  upon  the  records  of  the  county.  The  recital  in  the 
'  bond  to  the  effect  that  such  determination  has  been  made,  and  that  the 
constitutional  limitation  had  not  been  exceeded  in  the  issue  of  the  bonds, 
taken  in  connection  tvith  the  fact  that  the  bonds  themselves  did  not  show 
such  recital  to  be  untrue,  under  the  law,  estops  the  county  from  saying 
that  it  is  untrue.  Toivn  of  Coloma  v.  Eaves,  92  U.  S.  484 ;  Tow7i  of 
Venice  v.  2Iurdock,92  U.  S.  494;  Marcy  v.  Township  of  Oswego,  92 
U.  S.  637  ;  Wilson  v.  Salamanca,  99  U.  S.  499  ;  Buchanan  v.  Litch- 
field, 102  U.  S.  278;  Northern  Bank  v.  Porter  Township,  110  U.  S. 
G08.''  After  I'eferring  to  what  was  said  in  Town  of  Coloma  v.  Eaves 
and  Buchanan  v.  Litchfield,  the  court  thus  concludes  its  opinion  :  "We 
think  this  case  comes  fairly  within  the  principles  of  those  just  cited ; 
and  that  it  is  not  governed  by  Dixon  Cminty  v.  Field  and  Lake  County 
V.  Graham,  but  is  distinguishable  from  them  in  the  essential  particulars 
above  noted." 

It  is  contended  that  the  present  case  is  controlled  by  Sutliffy.  Lake 
County  Conunissig}ie£&,  147  U.  S.  230,  235,  237-8,  rather  than  by  VHiaffee 
X7dunty~V\  Potter.  The  action  in  the  Sutliff  case  was  upon  coupons  of 
bonds  issued  by  a  county  of  Colorado,  each  bond  reciting  that  it  was 
issued  under  and  by  virtue  of  and  in  compliance  with  the  act  of  assem- 
bly entitled  "  An  t'ct  concerning  counties,  county  officers  and  county 
government,  and  repealing  laws  on  these  subjects,"  approved  March 
24,  1877,  and  it  was  cer^iified  in  each  bond  that  "  all  the  provisions  of 
sajd-  ^ct  have  been  fully  complied  with  by  the  proper  officers  in  the 
issuing  of  this  bond."  It  was  a  vital  fact  in  that  case  that  there  was 
no  recital  in  the  bonds  that  the  indebtedness  thus  created  was  not  in 
excess  of  the  constitutional  limit.  Still  the  defence  was  that  the  bonds 
in  fact  increased  the  indebtedness  of  the  county  to  an  amount  in  ex- 
cess of  tlie  limit  prescribed  by  the  state  constitution  and  therefore 
were  illegal  and  void  The  court,  upon  the  facts  certified  and  in  the 
light  of  previous  decisions,  held  it  to  be  clear  that  "the  plaintiff, 
although  a  purchaser  for  value  and  before  maturity  of  the  bonds, 
was  charged  with  the  duty  of  examining  the  records  of  indebted- 
ness provided  for  in  the  statute  of  Colorado,  in  order  to  ascertain 
whether  the  bonds  increased  the  indebtedness  of  the  county  beyond 
the  constitutional  limit;  and  that  the  recitals  in  the  bonds  did  not  estop 
the  county  to  prove  by  the  records  of  the  assessment  and  the  indebt- 
edness that  the  bonds  were  issued  in  violation  of  the  constitution.  In 
thof^e  cases,"  it  continued,  "  in  which  this  court  has  held  a  municipal 


GUNNISON   COUNTY   COMMISSIONERS   V.   IIOLLINS.  507 

corporation  to  be  estopped  by  recitals  in  its  bonds  to  assert  that  tliey 
were  issued  in  excess  of  the  limit  imposed  by  the  constitution  or  stat- 
utes of  the  State,  the  statutes,  as  construed  by  the  court,  left  it  to  the 
officers  issuing  the  bonds  to  determine  whether  the  facts  existed  which 
constituted  the  statutory  or  constitutional  condiiion  precedent,  and  did 
not  require  those  facts  to  be  made  a  matter  of  public  record.  Marcy 
V.  Osivego,  92  U.  S.  G37  ;  Humboldt  v.  Long,  92  U.  8.  642;  Dixon 
County  V.  Field,  111  U.  S.  83;  Lake  County  v.  Graham,  130  U.  S. 
674,  682  ;  Chaffee  County  v.  Potter,  142  U.  S.  355,  3G3.  But  if  the 
statute  expressly  requires  those  facts  to  be  made  a  matter  of  public 
record,  open  to  the  inspection  of  everj'  one,  there  can  be  no  implica- 
tion that  it  was  intended  to  leave  that  matter  to  be  determined  and 
conclnded,  contrary  to  the  facts  so  recorded,  by  the  officers  charo-ed 
with  the  duty  of  issuing  the  bonds."  After  referring  to  Dixon  County 
V.  Field,  above  cited,  the  court  proceeded  to  show  the  precise  grounds 
upon  which  the  decisions  in  Lake  County  v.  Graham  and  Chaffee  County 
V.  Potter  were  rested:  "That  decision  [.Dixon  County  v.  Field]  and 
the  ground  upon  which  it  rests  were  approved  and  affirmed  in  Lake 
County  V.  Graham  and  Chaffee  County  v.  Potter,  above  cited,  each  of 
which  arose  under  the  article  of  the  constitution  of  Colorado  now  in 
question,  but  under  a  different  statute,  which  did  not  require  the 
amount  of  indebtedness  of  the  county  to  be  stated  on  its  records. 
In  Lake  County  v.  Graham,  each  bond  showed  on  its  face  the  whole 
amount  of  bonds  issued^  and  the  recorded  valuation  of  property  showed 
that  amount  to  be  in  excess  of  the  constitutional  limit ;  and  for  this 
reason,  as  well  as  because  the  bonds  contained  no  recital  upon  that 
point,  the  county  was  held  not  to  be  estopped  to  plead  that  limit.  130 
U.  S.  682,  683.  In  Chaffee  County  v.  Potter,  on  the  other  hand,  the  bonds 
contained  an  express  recital  that  the  total  amount  of  the  issue  did  not 
exceed  the  constitutional  limit,  and  did  not  show  on  their  face  the 
amount  of  the  issue,  and  the  county  records  showed  only  the  valuation  of 
property,  so  that,  as  observed  by  Mr.  Justice  Lamar  in  delivering  judg- 
ment: 'The  purchaser  might  even  know,  indeed  it  may  be  admitted 
that  he  would  be  required  to  know,  the  assessed  valuation  of  the  tax- 
able property  of  the  county,  and  yet  he  could  not  ascertain  by  refer- 
ence to  one  of  the  bonds  and  the  assessment  roll  whether  the  count}'  had 
exceeded  its  power,  under  the  constitution,  in  the  premises.'  142  U.  S. 
363.  The  case  at  bar  does  not  fall  within  Chaffee  County  v.  Potter^ 
and  cannot  be  distinguished  in  principle  from  Dixon  County  v.  Field  or 
from  Lake  County  v.  Graham.  The  only  difference  worthy  of  notice 
is  that  in  each  of  these  cases  the  single  fact  required  to  be  shown  by 
the  public  record  was  the  valuation  of  the  property  of  the  county, 
whereas  here  two  facts  are  to  be  so  shown,  the  valuation  of  the  prop- 
erty, and  the  amount  of  the  county  debt.  But,  as  both  these  facts  are 
equally  required  by  the  statute  to  be  entered  on  the  public  records  of 
the  county,  they  are  both  facts  of  which  all  the  world  is  bound  to  take 


508  GUNNISON   COUNTY   COMMISSIONERS   V.   EOLLINS. 

notice,  and  as  to  which,  therefore,  the  county  cannot  be  concluded  by 
any  recitals  in  the  bonds." 

It  thus  appears  that  in  the  SntI iff  case  the  court  neither  modified,  nor 
intended  to  modify,  but  distinctly  recognized,  the  principle  announced 
in  Chaffee  County  v.  Potter,  namely,  that  the  recital  in  the  bonds  that 
the  debt  thereby  created  did  not  exceed  the  limit  prescribed  by  the  con- 
stitution estopped  the  county  from  asserting,  as  against  a  bona  fide 
holder  for  value,  that  the  contrar}-  was  the  fact. 

We  have  made  this  extended  reference  to  adjudged  cases  because  of 
the  wide  difference  among  learned  counsel  as  to  the  effect  of  our  former 
decisions.  This  course  has  also  been  pursued  in  order  to  bring  out 
clearly  the  fact  that  the  present  case  is  controlled  by  the  judgment  in 
Chaffee  CowU>/  v.  Potter.  The  views  of  the  Circuit  Court,  as  ex-~ 
pressed  in  its  charge  in  this  case  and  as  enforced  by  its  peremptory 
instruction  to  find  for  the  defendant,  cannot  be  approved  without  over- 
ruling that  case.  It  was  expressly  decided  in  the  Chaffee  County  ca^e 
that  the  statute  under  which  the  bonds  there  in  suit  (the  bonds  here  in 
suit  being  of  the  same  class)  authorized  the  County  Commissioners  to 
determine  whether  the  proposed  issue  of  bonds  would  in  fact  exceed 
the  limit  prescribed  by  the  constitution  and  the  statute ;  and  that  the 
recital  in  the  bond  to  the  effect  that  such  determination  had  been  made 
and  that  the  constitutional  limitation  had  not  been  exceeded,  taken  in 
connection  with  the  fact  that  the  bonds  themselves  did  not  show  such 
recital  to  be  untrue,  estopped  the  county,  under  the  law,  from  saying 
that  the  recital  was  not  true.  We  decline  to  overrule  Chaffee  County  v. 
Putter,  and  upon  the  authority  of  that  case,  and  without  reexamining  or 
enlarging  upon  the  grounds  upon  which  the  decision  therein  proceeded, 
we  adjudge  that  as  against  the  plaintiff  the  county  of  G-unnison  is  es- 
topped to  question  the  recital  in  the  bonds  in  question  to  the  effect 
that  they  did  not  create  a  debt  in  excess  of  the  constitutional  limit 
and  were  issued  by  virtue  of  and  in  conformity  with  the  statute  of 
1881  and  in  full  compliance  with  the  requirements  of  law. 

We  have  assumed  thus  far  that  the  plaintiff  corporation  was  a  bona 
fide  purchaser  or  holder  of  the  bonds  to  which  the  coupons  in  suit  were 
attached.  Upon  this  question  we  concur  in  the  views  expressed  by 
the  Circuit  Court  of  Appeals.  Speaking  by  Judge  Thayer,  that  court 
said:  "The  testimony  contained  in  the  present  record  shows,  we 
think,  without  contradiction  that  the  plaintiff  was  a  bona  fide  holder 
when  the  suit  was  brought  of  at  least  five  of  the  bonds  which  are  in- 
volved in  the  present  controversy,  because  it  holds  the  title  of  Joseph 
Stanley,  who  was  himself  an  innocent  purchaser  of  said  bonds  before 
maturity,  for  the  price  of  ninety-eight  cents  on  the  dollar.  The  rights 
which  Stanley  acquired  by  virtue  of  such  purchase  inure  to  the  plain- 
tiff, by  virtue  of  its  purchase  of  the  bonds  from  Stanley  in  June,  1892, 
and  this  without  reference  to  any  knowledge  which  the  plaintiff  may 
have  had  at  the  latter  date  affecting  the  validity  of  the  securities.     A 


/Ur^  Cat-* 


GUNNISON   COUNTY    COMMISSIONEKS   V.    ROLLINS.  509 

honafide  holder  of  commercial  paper  is  entitled  to  transfer  to  a  third  j:^  f^"*! 
party  all  the  rights  with  which  he  is  vested,  and  the  title  so  acquired/     '-^''     -^ 
by  his  indorsee  cannot  be  affected  by  proof  that  the  indorsee  was  ac-|    ' 
quainted  with  thq  defences  existing  against  the  paper.     Commissioners 
of  Marion  County  \.  Clark,  94  U   S.  278,  286;  IliU  v.  Scotland  County, 
34  Fed.  Rep.  208 ;  Daniel  on  Negotiable  Instruments  (4th  ed.),  §  803, 
and  cases  there  cited."     49  U.  S.  App.  399,  413. 

The  remaining  five  bonds  owned  by  the  plaintiff  corporation  were  « 

also  purchased  from  Stanley,  who  received  them  directly  from  the\0^  ur<A-o 
county  in  exchange  for  warrants  that  he  owned  and  held.  There  is  no 
reason  why  upon  the  surrender  of  county  warrants  for  county  bonds 
he  was  not  entitled  to  the  benefit  of  the  rule  above  declared  as  to  the 
conclusiveness  of  the  recital  in  the  bonds,  or  why  he  may  not  be  re- 
garded as  much  an  innocent  holder  of  the  bonds  exchanged  for  county 
warrants  as  of  the  other  bonds  purchased  by  him  in  open  market. 
There  is  no  proof  that  at  the  time  of  such  exchange  he  had  or  was 
chargeable  with  knowledge  or  notice  that  the  debt  created  by  the  ^^^,yj0^a^C^ 
bonds  exceeded  the  constitutional  limit ;  consequently,  in  taking  the 
bonds  in  exchange  he  was  entitled,  for  the  reasons  heretofore  given,  to  ^^^^ 

rely  upon  the  truth  of  the  recitals  contained  in  them.    When  the  Board  jLtvn— 

of  County  Commissioners,  proceeding  under  the  act  of  1881,  offered  to 
exchange  county  bonds  for  the  warrants  held  by  him,  he  was  entitled 
under  the  circumstances  disclosed  to  assume  it  to  be  true  as  recited  in 
the  bonds  that  the  constitutional  limit  was  not  being  exceeded. 

It  is  insisted  with  much  earnestness  that  the  principles  we  have  an- 
nounced render  it  impossible  for  a  State  by  a  constitutional  provision 
to  guard  against  excessive  municipal  indebtedness.  By  no  means.  If 
a  state  constitution,  in  fixing  a  limit  for  indebtedness  of  that  character, 
should  prescribe  a  definite  rule  or  test  for  determining  whether  that 
limit  has  already  been  exceeded  or  is  being  exceeded  by  any  particular 
issue  of  bonds,  all  who  purchase  such  bonds  would  do  so  subject  to 
that  rule  or  test,  whatever  might  be  the  hardship  in  the  case  of  those 
who  purchased  them  in  the  open  market  in  good  faith.  Indeed,  it  is  <^^- 
entirel}'^  competent  for  a  State  to  provide  by  statute  that  all  obliga-     IUIaIS'^^ 

tions,  in  whatever  form  executed  by  a  municipality  existing  under  its  ^      j 

•1  ,111         1...  ,„  ...  Ill       ,1         -..  ",  >-^-._^ 


laws,  shall  be  subject  to  any  defence  that  would  be  allowed  in  cases  of 


non-negotiable  instruments.    But  for  reasons  that  every  one  understands 
no  such  statutes  have  been  passed.     Municipal  obligations  executed     -'^-fv^ 
under  such  a  statute  could  not  be  readily  disposed  of  to  those  who  in- 
vest in  such  securities. 

It  follows  that  the  Circuit  Court  erred  in  directing  the  jury  to  return 
a  verdict  for  the  defendant. 

AYhat  has  been  said  renders  it  unnecessary  to  consider  various  ques- 
tions arising  upon  exceptions  to  specific  rulings  in  the  Circuit  Court  as 
to  the  admission  and  exclusion  of  evidence,  and  as  to  those  parts  of 
the  charge  to  which  objections  were  made.  Those  rulings  were  incon- 
sistent with  the  principles  herein  announced. 


J^ 


510  CITY   OF   LOUISIANA   V.    WOOD. 

As  neither  the  Circuit  Court  nor  the  Circuit  Court  of  Appeals  pro- 
ceeded in  accordance  with  the  principles  herein  announced,  the  judgment 
of  each  court  is 

Me  versed,  and  the  cause  is  remanded  for  further  2^'t'oceedings  ^^^^ 
consistent  ivith  this  opinion.^  .  ^    ^^  ♦.-,*  ^^^•^^  ' 

CITY   OF   LOUISIANA  v.    WOOD.    -""V^^**^^!^  ^^ 

1880.     102  t/.  5.  294.2  Af^  /         CT"*""^ 

Error  to  U.  S.  Circuit  Court  for  Eastern  District  of  JJ^ssjQiirL      *'^'/\  k 
Action  by  Wood  to  recover  back  from  the  city  money  paid  for  cer-        v 
tain   bonds.     The  cit}"  had  authority  in  law  to  borrow  money,  and  to   tL^^ 
provide   for  the  payment  of   its  debts.     An  ordinance  was  passed,    fjjfi 
authorizing  the  city  fund  commissioner   to  negotiate  bonds   of   the  ..^.^^ 
city  for  the  purpose  of  raising  money  to  liquidate  the  city  debt,  at  a 
rate  of  discount  not  exceeding  lifteen  per  cent.     Before  any  bonds      f^ 
had  been  issued  under  this  ordinance,  the  legislature,  on  March  28,     '•>«v 
1872,  passed  a  statute  which  provides  that  before  any  bond  hereafter   ^^/■sju 
issued  by  any  city,  for  any  purpose  whatever,  shall  obtain  validity  or  ■ 
be  negotiated,  such  bond  shall  first  be  presented  to  the  State  Auditor,    '^^^'^ 
who  shall  register  the  same,  and  who  shall  certify  by  indorsement  on  "^^^ 
such  bond  that  all  the  conditions  of  the  laws  have  been  complied  with  /U-^  1 
in  its  issue,  if  that  be  the  case.  -JbnV 

On  the  16th  of   July,   1872,  after   this  act  went   into   effect,   the   / 
city,  for   the  purpose  of  raising    money  to  pay  its  interest-bearing   ^  *]  9 
debts  and  the  expenses  of  its  government,  caused  to  be  executed  by     \^^ 
its  proper  officers,  and    sealed  with    its  corporate    seal,    twenty-one     (jj^ 
bonds,   payable  to  bearer  on  the   1st  of   January,   1887,  for  81,000 
each,  with  coupons  attached  for  semi-annual  interest  at  the  rate  of 
ten  gei-  ceiit  pei'  annum.     These  bonds  contained  recitals  that  they       yv>^ 
were  issued  under  the  authority  of  the  charter  and  the  ordinance  of 
Jan.  8,  18G7.      Although  not  actually  executed  until  July  16,  1872, 
the  city,  "  for  the  purpose  of  evading  the  provisions  of  said  registra- 
tion law^,  and  with  the  intent  to  make  it  falsely  appear  that  said  bonds 
were  not  subject  to  the  requirements  of  said  law,  caused  said  bonds 
to  be  antedated  as  of  the  first  day  of  January,  1875~^  and  caused  it  to 
be  falsely  stated  in  them  that  they  were  signed,  countersigned,  and 
sealed  on  the  day  last  named."     The  bonds  thus  executed  were,  with- 
out beingj:egistered,  placed  by  the  fund  commissioner  in  the  hands  of 
a  ^respectable  stock  and  bond  broker  in  St.    Louis,   to  sell  "for  the 
account  of  the  city.     On  the  25th  of  August,  1873,  the  broker  and 

1  See  also  Wmte  v.  Santa  Cruz,  184  U.  S.  302. 
Statement  abridged.  —  Ed. 

([]C<r^c-^^    ,^— Cul      irfc*^J^^-^    A^A^^^*-ft^    M^xK>tri.  VU|  >\v..v,,<irv' 


i\lr. 


U 


CITY   OF   LOUISIANA    V.    WOOD,  511 


^ 


AjJ"^^ 


agent  sold  and  delivered  to  the  plaintiff  below,  now  the  defendant  in 
error,  ten  of  the  bonds  at  ninety  per  cent  of  their  face  valne,  and  on 
the  Ist  of  September  nine  more  at  the  same  rate.     On  the  24th  of      Jyv>-^. 
June  he  sold  to  Lewis    Dorsheimer   one   bond,   and  on  the    24lh  of 
February,   187-4,    another  to  John  F.   Gibbons,   at   the   same    price. 
The  price  was  in  each  case  paid  to  the  broker  in  money,  the  purchas- 
ers all  the  time  being  ignorant  of  the  fact  that  the  bonds  were  actually 
executed  after  the  registration  law  went  into  effect,  or  that  the  recitals 
were  not  in  all  respects  true.     They  bought  the  bonds,  and  paid  for 
them  in  good  faith,  believing  them  to  be  what  on  their  face  they  pur- 
ported to  be,  and  obligatory  on  the  city.     The  broker,  with  the  assent 
of  the  fund  commissioner,  retained  from  the  money  realized  on  the 
sales  five  per  cent  on  the  par  value  of  the  bonds  sold,  for  his  services, 
and  paid  the  residue  to  the  comuiissioner,  wlio,  with  the  sanction  of 
the  city  council,  used  part  in  the  payment  and  redemption  of  matured 
bonds,  coupons,  and  warrants  of  the  city,  and  handed  over  the  rest 
to  the  city  treasurer.     The  fund  comm.issioner  reported  the  sales  of 
the  bonds  to  the  city  council,  and  charged  himself  with  a  sum  equal  M   -^^ 
to  eighty-five  per  cent  of  the  par  value  as  the  sum  realized  by  him,  '  c'-'-''' 
malting  no  mention  of  the  amount  retained  by  the  broker  for  services.  ■. 
His  accounts  were  examined  and  approved  by  the  city  council,  and\l  i;^  o-<<jkT 
the  bonds,  coupons,  and  warrants  taken  up  by  his  payments  were       Qy,yy^^ 
destroyed.     The  interest  on  the  bonds  thus  sold  was  met  in  full  by 
the  city  as  it  matured  until  Jan.  1,  1876,  when  only  forty  per  cer.t 
was  paid,  and  on  the  1st  of  July  of  that  year  the  city  declared  its 
purpose  not  to  pay  either   principal  or  interest,  claiming  that   the 
bonds  were  invalid  because  not  registered. 

The  bonds  bought  by  Dorsheimer  and  Gibbons  were  transferred  to 
the  plaintiff.  After  the  city  had  repudiated  its  obligation,  he  offered 
to  return  the  whole  twenty-one  bonds,  and  demanded  the  repayment 
of  the  several  sums  paid  for  them.  This  being  refused,  the  present 
suit  was  brought  to  recover  back  the  money  so  paid.  Upon  the  fore- 
going facts  the  court  gave  judgment  against  the  city  for  §18,900,  and 
interest  at  the  rate  of  six  per  cent  per  annum  from  the  time  the  pay- 
ment of  the  interest  on  the  bonds  was  stopped.  To  reverse  that 
judgment,  the  city  brought  the  case  to  this  court,  and  the  error 
assigned  is  that  the  facts  found  are  not  sufficient  to  support  the 
judgment. 

David  P.  Dyer  for  the  plaintiff  in  error. 

John  D.  S.  Dvyden^  contra. 

Mr.  Chief  Justice  Waite,  after  stating  the  facts,  delivered  tha 
opinion  of  the  court. 

That  the^  bonds  in  question  are  invalid,  is  conceded.  Such  is  the 
effect  of  Antliony  v.  County  ofJ>(.y>cr  (101  U.  S.  093),  decided  at  the 
last  term.  It  is  equally  true  that  the  legal  effect  of  the  transactions 
by  which  the  plaintiff  and  his  assignors  got  possession  of  the  bonds 
was  a  borrowing  by  the  city  of  the  money  paid  for  what  was  sup* 


512  CITY    OF   LOUISIANA    V.   WOOD. 

posed  to  be  a  purchase  of  the  bonds.  As  the  broker  through  whom 
the  business  was  doue  was  the  agent  of  the  city  and  acting  as  such, 
the  case,  so  far  as  the  city  is  concerned,  is  the  same  as  though  the 
money  had  Been  paid  directly  into  the  city  treasury  and  the  bonds 
A  ^>dti*^  .    fgiven  back  in  exchange.     The  fact  that  the  purchasers  did  not  know 


I 


.  'for  whom  the  broker  was  acting  is,  for  all  the  purposes  of  the  present 

inquiry,   immaterial.     They  believed  they  were  buying  valid  bonds 
which  had  been  negotiated  and  were  on  the  market,  when  in  reality 

'^  \  they  were  loaning  money  to  the  city,  and  got  no  bonds.     The  city 

""  was  in  the  market  as  a  borrower,  and  received   the  money  in  that 

character,  notwithstanding  the  transaction  assumed  the  form  of  a  sale 
of  its  securities. 

The  city,  by  putting  the  bonds  out  with  a  false  date,^represented 
that  they  were  valid  without  registry.     The  bonds  were  bought  and 
^ Ji.  ^'     *^^  price  was  paid  under  the  belief,  brought  about  by  the  conduct  of 
'"     the  city,  that  they  had  been  put  out  and  had  become  valid  commer- 
cial securities  before  the  registry  law  went    into    effect.     It   would 

^  '  certainly  be  wrong  to  permit  the  city  to  repudiate  the  bonds  and  keep 

the  money  borrowed  on  their  credit.  The  city  could  lawfully  borrow. 
The  objection  goes  only  to  the  way  it  was  done.  As  the  purchasers 
were  kept  in  ignorance  of  the  facts  which  made  the  bonds  invalid, 
they  did  not  knowingly  make  themselves  parties  to  any  illegal  trans- 
action. They  bought  the  bonds  in  open  market,  where  they  had 
been  put  by  the  city  in  the  possession  of  one  clothed  with  apparent 
authority  to  sell.  The  only  party  that  has  done  any  wrong  is  the 
city. 
C*'    *"  ^"  111  Moses  V.  3IacFerlan,{-2  Burr.  1005),  it  is  stated  as  a  rule  of  the 

^^.  common  law,   that  an  action  "  lies  for  money  paid  by  mistake,  or 

upon  a  consideration  which  happens  to  fail,  or  for  money  got  through 
ttA^(jjr^%^  imposition."  The  present  action  can  be  sustained  on  either  of  these 
"^grounds.  The  money  was  paid  for  bonds  apparently  well  executed, 
when  in  fact  they  were  not,  because  of  the  false  date  they  bore.  This 
was  clearly  money  paid  by  mistake.  The  consideration  on  which  the 
payment  was  made  has  failed,  because  the  bonds  were  not,  in  fact, 
valid  obligations  of  the  city.  And  the  money  was  got  through  impo- 
sition, because  the  city,  with  intent  to  deceive,  pretended  that  the 
false  date  the  bonds  bore  was  the  true  one.  While,  therefore,  the 
bonds  cannot  be  enforced,  because  defectively  executed,  the  money 
paid  for  them  may  be  recovered  back.  As  we  took  occasion  to  say 
in  Marsh  v.  Fulton  County  (10  Wall.  676),  "the  obligation  to  do 
justice  rests  upon  all  persons,  natural  or  artificial,  and  if  a  county 
obtains  the  money  or  property  of  others  without  authority,  the  law, 
independent  of  any  statute,  will  compel  restitution  or  compensation.'' 
It  is  argued,  however,  that,  as  the  city  was  only  authorized  by 
law  to  borrow  money  at  a  rate  of  interest  not  exceeding  ten  per  cent 
per  annum,  the  money  cannot  be  recovered  back,  because  a  sale  of 
the  bonds  involved  an  obligation  to  pay  interest  beyond  the  limited 


RAILROAD   NATIONAL   BANK    V.   CITY   OF   LOWELL  513 

rate,  and  the  borrowing  was,  therefore,  ultra  vires.     There  was  no 
actual    sale  of   bonds,   because   there  were  no   valid    bonds  to   sell. 
There  was  no  express  contract  of  borrowing  and  lending,  and  conse-  -s^*^^-— *-  '^  -"^ 
quezitly  no  express""c6htract  to  pay  any  rate  of  interest  at  all.     The   ' 
only  contract  actually  entered  into  is  the  one  the  law  implies  from 
jvhat  was  done,  to  wit,  that  the  city  would,  on  demand,  return  the 
money  paid  to  it  liy  mistake,  and,  as  the  money  was  got  under  a  form 
of  obligation  which  was  apparently  good,  that  interest  should  be  paid^' 
at  "the  legal  rate  from  the  time  the  obligation  was  denied.     That  con- 
tract the  plaintiffs  seek  to  enforce  in  this  action,  and  no  other. 

Again,  it  was  contended  that,  as  the  money  in  this  case  was  bor- 
rowed to  take  up  bonded  indebtedness,  the  transaction  was  ultra  vires, 
because  the  effect  of  the  eleventh  section  of  the  act  of  1872  was  to 
repeal  all  earlier  laws  authorizing  the  borrowing  of  money  for  such         .    .       t^ 
purposes.     We  do  not  so  understand  that  section.     The  old  power  to  ^^wC^M 
borrow,  which  the  charter  gave,  was  left  unimpaired,  but,  under  this    cS^l^*-^ 
new  provision,  registered  bonds  might  be  issued  in  place  of  old  ones,    ^^o■>^^/•e^^^ 
if  the  city  and  the  holders  of  the  old  bonds  could  agree  on  terms  and     ' 
the  people  gave  their  assent.     In  this  way  the  holders  of  old  bonds 
might  avail  themselves  of  the  special  tax  which  the  law  of  1872  re- 
quired should  be  levied  to  meet  the  obligation  of  all  registered  bonds; 
but  the  city  was  not  prevented  from  borrowing    money  to  pay   old 
bonds  if  it  saw  fit  to  do  so,  or  if  it  could  not  agree  on  the  terms  of 
exchange. 

The  judgment  below  was  right,  and  it  is  consequently 

.  Affirmed. 

'^■^^  RAILROAD   NATIONAL  BANK  v.    CITY  OF   LOWELL. 

s        ^^\  *  1872.     109  .1/fTss.  214. 

^  Contract   to  recover   $3397  as  money   had   and   received   to   the 

T^    plaintiffs'  use.     The  case  was  submitted  to  the  judgment  of  this  court 
*  on  the  following  statement  of  facts: 

In  1864  Thomas  G.  Gerrish  was  chosen  treasurer  of  the  defendants, 

^  ■     held  the  office  by  successive  annual  elections,    and   discharged    the 

^uAT^  duties  thereof  until  after  March  10,  1869.     During  all  this  time  he, 

^^yv^sis  treasurer,  had  an  account  with  the  plaintiff's    and  with  no  other 

\^^^ank,  under  an  arrangement  between  the  parties  that  the  accounts  of 

'^"'^  tlie  defendants  should  be  kept  there.     In  each  of  the  years  1865,  1866, 

.-'^r'T^lSe?  and  1868,  the  city  council  authorized  him  to  borrow  money  of 

-K'^'^he  plaintiffs  in  anticipation  of  the  collection  of  taxes,  and  the  sums 

V;;! 'SO  borrowed   were   always   repaid  with    interest.       In  INIarch    1869, 

^  Gerrish  was  a  defaulter  to  the  defendants  as  treasurer,  to  the  amount 

of  $30,000,  but  the  fact  was  unknown  to  the  parties  to  this  action. 

and  on  the  evening  of  March  9  a  resolution,  authorizing  him  to  bor- 


514  RAILEOAD   NATIONAL   BANK    V.    CITY   OF   LOWELL. 

row  $130,000  from  the  plaintiffs,  in  anticipation  of  the  collection  of 
taxes  for  that  year,  was  introduced  into  the  common  council,  read 
once,   and  ordered  to  a  second  reading. 
<Vvv:^A»^^*>^>~*^^n  the  molming  "of   March  10,  1869,  at  which   time   the  amount 
^K>-0  standing  to   the   credit  of    Gerrish    as  treasurer,    in    the   plaintiffs' 

\h^''^  hands,  was  $2674,  he  stated  to  the  plaintiffs'  cashier  that  the  neces- 

U  *  sar}'  authority  to  borrow  money  had  been  granted  the  evening  before, 

.T^A  ■  that  the  papers  were  not  executed,  and  that  he.w2shed_to  overdraw 

Ms  account.  He  therefore,  without  the  knowledge  of  the  defendants, 
or  any  especial  authority  from  them,  presented  to  the  plaintiffs  a 
check  signed  by  himself  as  city  treasurer,  payable  to  his  own  order, 
and  indorsed  by  him,  for  $5000,  received  the  money  therefor  from 
the  plaintiffs,  placed  the  same  in  the  cash-drawer  where  he  kept  the 
defendants'  money,  with  "  a  small  sum,  exceeding  $100,"  remaining 
there  after  thfe  business  of  the  preceding  day;  and  from  the  money 
there  he  paid  during  the  same  day,  to  various  creditors  of  the  de- 
fendants, upwards  of  $4900.  The  rest  of  it  was  left  there,  and  came 
into  the  possession  of  the  defendants.  He  afterwards  on  the  same 
day  drew  another  check  upon  the  plaintiffs,  signed  by  himself  as  city 
treasurer,  payable  to  bearer,  for  $1072,  to  pay  a  debt  due  from  the 
defendants  to  a  gaslight  company,  which  check  was  presented  to  the 
plaintiffs  by  the  company  and  paid  on  the  same  day. 

On  March  11,  1869,  Gerrish  resigned  his  office.  He  never  kept  a 
private  account  with  the  plaintiffs.  Demand  was  made  on  the  de* 
fendants  on  March  12,  1869. 

C.  Allen  &  F.  W.  Kittredge,  for  the  plaintiffs. 
T.  H.  Sweetser  &  J.  F.  McEooy,  for  the  defendants. 
g^.^^-^^  I      Wells,  J.     That  the  city  is  not  liable  for  the  money  as  a  loan, 

/  because  it  was  advanced  to  its  treasurer  or  paid  upon  his  checks,  ia 
f  fully  settled  by  the  decisions  in  Lowell  Five  Cents  Savings  Bank  v. 
Winchester,  8  Allen,   109;  Benoit  v.    Conway,  10.  Allen,  528;   and 
Dickinson  v.  Conway,  12  Allen,  487. 
v»V«'^*^  It  was  also  decided  in  Kelley  v.  Lindsey,  7  Gray,  287,  that  money 

^.1.  ^,-^J^  advanced  on  account  of  the  defendant  to  one  in  his  employ,  but  who 
had  no  authority  to  borrow  money  for  him,  created  no  debt  against 
the  defendant,  although  advanced  for  the  purpose  of  being  expended 
in  his  business  and  to  pay  his  debts,  and  actually  so  applied.  That  de- 
cision appears  to  us  to  be  conclusive  against  the  plaintiff  in  this  case. 
In  Bill  V.  Wareham,  7  Met.  438,  cited  by  the  plaintiff,  the  money 
was  paid  into  the  treasury  of  the  town  in  pursuance  of  a  contract 
made  by  authority  of  a  vote  of  the  town. 

In  Atlantic  Bank  v.  Merchants'  Bank,  10  Gray,  532,  and  Skinner 
V.  Merchants'  Bank,  4  Allen,  290,  the  money  came  into  the  actual 
possession  and  control  of  the  defendant  bank.  The  legal  possession 
of  money  received  by  the  officers  of  a  bank,  in  the  usual  mode,  is  in 
the  corporation,  and  not  in  the  officers  in  whose  charge  and  manual 
control  it  is  intrusted.      Commonwealth  v.  Tuckerman,  10  Gray,  173. 


AGAWAM   NAT.   BANK   V.   INHABITANTS   OF   SOUTH   HADLEY.      515 

The   treasurer   of   a   city   or   town  is  an  independent   accounting!  Jl^  :'w^>«> ■ 
ofBcei-rijy  statute  made  the  depositary  of  the  moneys  of  the  city  or  |  ^^^o^^v! 
towEu__Gen.   Sts.  c.  18,  §§  54,  59;  c.  19,  §"2.     The  legaf  possession  fl     ,  ^..xr^ta-' 
of  the  specific  moneys  in  his  hands,  from  whatever  source,  is  in  him.  l"^  (Kr»-s 
Hancock  v.  Hazzard,  12  Cush.   112.      Coleraine  v.  Bell,  9  j\Iet.  499.  /  v 

All  moneys  of  the  city  or  town  he  holds  as  its  property,  and  exclu-  ■  ''•^ 

sively  for  its  use.     But  he  holds  them  by  virtue  of  his  public  official  1  \\^  1-^^^-  ^« 
authority  and  duty,  and  not  merely  as  the  agent  or  servant  of  a 
corporation. 

The  fact  that  the  money  in  this  case  went  into  the  hands  of  the 
treasurer,  and  was"  placed  in  the  drawer  provided  by  the  city  for 
his  use  in  keeping  the  funds  of  the  city,  is  not  enough  to  charge  the 
defendant  with  UabjHtj^ 

The  result  is,  therefore,  that  the  defendant  is  entitled  to  judgment. 


^ 


^1^^' 


COLT,    J.,    IN    AG  AW  AM    NATIONAL    BANK    v.    INHABI- 
TANTS  OF    SOUTH   HADLEY. 

1880.     128  J/ass.  503,  pp.  508,  509. 

Colt,  J.  ...  It  is  said  that  an  action  for  money  had  and  received 
may  be  maintained  against  a  municipal  corporation,  when  the  money 
has  been  received  under  such  circumstances  that,  independently  of 
express  contract,  the  obligation  of  repayment  is  imposed  as  a  matter 
of  right  and  justice.  Thus,  when  it  is  received  under  a  contract 
made  without  authority  or  in  violation  of  law,  the  duty  arises  to 
refund  the  money  to  the  party  from  whom  it  was  received,  if,  without 
affirming  the  illegal  contract,  the  latter  seeks  only  to  recover  his 
own  money  and  prevent  the  defendant  from  unjustly  retaining  the 
benefit  of  its  own  illegal  act.  Morville  v.  American  Tract  Society^ 
123  Mass.  129.  ,  Dill  v.  Wareham,  7  Met.  438.  White  v.  Franklin 
Bank,  22  Pick.  181.  See  also  Thomas  v.  Richmond,  12  Wall.  349, 
355.  But  in  such  cases  it  must  appear  that  the  money  was  actually 
and  beneficially  appropriated  by  the  town  or  city  in  its  corporate 
capacity.  It  cannot  be  treated  as  appropriated  merely  because  it  has 
been  applied  by  the  unauthorized  act  of  the  town  treasurer,  or  of  any 
other  person,  to  the  payment  of  municipal  debts,  for  the  payment  of 
which  other  provision  had  been  made.  It  is  sometimes  said,  indeed,^ 
wiTH  reference  to  money  borrowed  in  disregard  of  positive  prohibi- 
tion, when  both  parties  are  in  fault,  that  it  cannot  under  any  circum- 
stances be  recovered  back,  because  that  would  be  to  defeat  the 
prohibition  in  favor  of  a  guilty  party.  McDonald  v.  Maijor,  &c.  oj 
New  York,  68  N.  Y.  23.  Parr  v.  Greenhish,  72  N.  Y.  463,  472. 
Herzo  v.  San  Francisco,  33  Cal.  134.  Argenti  v.  San  Francisco^ 
16  Cal.  255,  282.     See  also  Dillon  Mun.  Corp.  §  383. 


516  MCDONALD   V.   MAYOR,   &C.,   OF   NEW   YORK. 

FIELD,    J.,    IN   CRAFT   v.    SOUTH   BOSTON   R.    R, 

1889.     150  Mass.  207,  p.  210. 

Field,  J.  .  .  .  "Whether  a  person  under  any  circumstances  can  be 
made  a  debtor  for  money  borrowed  by  another  for  him,  without 
authority,  and  appropriated  to  his  use  without  his  knowledge  or  con- 
sent, need  not  be  considered.  See  Kelley  v.  Lindsey,  7  Gray,  287. 
No  obligation  on  the  part  of  the  defendant  ought  to  be  implied  in 
this  case,  because  Reed  was  a  defaulter,  and  the  money  was  used  to 
cover  up  his  defalcation  by  paying  debts  of  the  company,  which  the 
moue}'  of  the  company,  if  he  had  not  embezzled  it,  would  have  been 
used  to  pay.  The  onl}'  reasonable  inference  is  that  Reed's  primary 
purpose  in  using  the  money  in  this  way  was  to  escape  detection  and 
to  benefit  himself.  Whether  it  was  a  benefit  to  the  company  that  he 
was  able  to  obtain  and  use  money  for  this  purpose  is  necessarily 
uncertain.  The  money  was  not  borrowed  bona  fide  for  the  use  of  the 
company.  See  Railroad  National  Bank  v.  Lowell^  109  Mass.  214j 
Agawam  National  Bank  v.  South  Hadley^  128  Mass.  503. 


Mcdonald  v.  mayor,  &c.,  of  new  york. 

1876.     68  New  York,  23.1 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in 
the  first  judicial  department  reversing  a  judgment  in  favor  of  plaintiff 
entered  upon  a  verdict,  and  granting  a  new  trial. 

This  action  was  brought  to  recover  the  value  of  certain  gravel  and 
stone  alleged  to  have  been  sold  and  delivered  by  plaintiff  to  defendant 
and  used  in  the  repair  of  one  of  its  streets. 

The  material  was,  as  the  evidence  tended  to  show,  furnished  by 
plaintiff  in  1869  and  1870,  at  the  request  of  the  superintendent  of 
roads,  to  whom  the  bills  were  given  and  were  certified  by  him  to  the 
street  department.  The  material  was  taken  and  used  on  the  streets. 
Further  facts  appear  in  the  opinion. 

Henry  Parsons,  for  appellant. 

D.  J.  Dean,  for  respondent. 

FoLGER,  J.  The  plaintiflf  sues  to  recover  from  the  city  the  value  of 
materials  furnished  by  him  to  certain  officials,  which  were  used  in  the 
repair  of  a  public  way.  The  amount  he  claims  is  over  61,600  in  the 
whole.  The  materials  were  furnished  at  different  times,  in  parcels, 
each  of  which,  except  one,  was  less  in  value  than  $250. 

He  does  not  aver,  nor  did  he  prove  in  terms,  that  a  necessity  foJ 

^  Argumenta  omitted.  —  Ed. 


MCDONALD    V.    MAYOR,   AC,    OF   NEW   YORK.  517 

the  purchase  or  use  of  the  materials  was  certified  to  by  the  head  of 
the  department  of  public  works,  or  that  the  expenditure  therefor  was 
authorized  by  the  common  council  (Laws  of  18o7,  vol.  1,  p.  8«G,  chap. 
446,  §  38) ;  nor  did  he  aver  or  prove  in  terms,  that  a  contract  for 
the  purchase  of  the  materials  was  entered  into  by  the  appropriate 
head  of  department,  upon  sealed  bids  or  proposals,  made  in  compli- 
ance with  public  notice  advertised.     (Id.  )^ 

The  existence  and  stringency  of  these  statutory  provisions  are 
recognized  by  plaintiff's  counsel,  but  the  force  of  them  is  sought  to 
be  avoided.  It  is  urged,  that  the  object  of  the  expenditure  was 
proper,  as  it  is  part  of  the  defendant's  corporate  duty  to  keep  public 
ways  in  repair;  that  the  material  was  delivered  to  the  superintendent 
of  roads,  an  official  of  the  defendant,  charged  with  carrying  that  duty 
into  practical  effect;  and  that  the  plaintiff'  had  reason  to  believe  that 
the  superintendent  was  acting  within  the  line  of  his  duties.  The  first 
two  of  these  propositions  may  be  admitted ;  the  third  may  not  be. 
Doubtless,  to  the  apprehension  of  the  plaintiff,  the  superintendent 
was  so  acting,  as  to  do  work  which  it  was  the  duty  of  the  defendant 
to  cause  to  be  done.  But  we  see  nothing  in  the  case  which  brought 
to  his  mind,  so  as  to  create  a  belief,  that  there  had  been  a  contract 
made  for  the  material,  as  above  indicated,  or  that  the  necessity  for 
the  expenditure  had  been  certified  to  and  authorized,  as  required  by 
law.  And  though  the  superintendent  of  roads  had  certified  to  be 
correct,  the  bills  for  the  materials,  rendered  by  the  plaintiff,  this  did 
not  meet  the  letter  of  the  statute  laws.  Such  certification  did  not 
precede  the  reception  of  the  material ;  nor  was  the  certification  by  the 
head  of  the  department;  nor  was  the  taking  and  use  of  the  material, 
nor  payment  for  it,  authorized  by  the  common  council.  Nor  can  it 
be  that  the  provisions  of  the  statute,  are  alone  for  the  instruction  of 
the  department  and  officials  of  the  defendant.  They  were  a  restraint 
upon  them,  but  upon  other  persons  as  well.  They  put  upon  all  who 
would  deal  with  the  city,  the  need  of  first  looking  for  the  authority 

1  "  All  contracts  to  be  made  or  let  by  authority  of  the  common  council  for  work  to 
be  done  or  supplies  to  be  furnished  .  .  .  shall  be  made  b}'  the  appropriate  heads  of 
departments,  under  such  regulations  as  shall  be  established  by  ordinances  of  the  com- 
mon council.  Whenever  any  work  is  necessary  to  be  done  to  complete  or  perfect  a 
particular  job,  or  any  supply  is  needful  for  any  particular  purpose,  which  work  and 
job  is  to  be  undertaken  or  supply  furnished  for  the  corporation,  and  the  several  parts 
of  the  said  work  or  supply  shall  together  involve  the  expenditure  of  more  than  two 
hundred  and  fifty  dollars,  the  same  shall  be  by  contract,  under  such  regulations  con- 
cerning it  as  shall  be  established  by  ordinance  of  the  common  council,  unless  by  a 
vote  of  three-fourths  of  the  members  elected  to  each  board,  it  sliall  be  ordered  other- 
wise ;  and  all  contracts  shall  be  entered  into  by  the  appropriate  heads  of  departments, 
and  shall  be  founded  on  sealed  bids  or  proposals  made  in  compliance  with  public 
notice  .  .  . ;  and  all  such  contracts  when  given  shall  be  given  to  the  lowest  bidder.  .  .  . 
.  .  No  expenditure  for  work  or  supplies  involving  an  amount  for  which  no  contract 
is  required,  shall  be  made,  except  the  necessity  therefor  be  certified  to  by  the  head  of 
the  appropriate  department,  and  the  expenditure  be  as  authorized  by  the  common 
louncil."     New  York  Laws  o/ 1857,  Chap.  446,  Sect.  38.  —  Ed. 


518         MCDONALD  V.   MAYOR,  &C.,  OF  NEW  YORK. 

of  the  agent  with  whom  they  bargain.  Quite  clearly  do  they  impose 
upon  the  paying  agent  of  the  defendant  a  prohibition  against  an  un- 
authorized expenditure.  And  are  they  not  also  a  restraint  upon  the 
municipality  itself?  They  are  fitted  to  insure  official  care  and  delib- 
eration, and  to  hold  the  agents  of  the  public  to  personal  responsi- 
bility for  expenditure;  and  they  are  a  limit  upon  the  powers  of  the 
corporation,  inasmuch  as  they  prescribe  an  exact  mode  for  the  exer- 
cise of  the  power  of  expenditure. 

It  is  said  that  the  plaintiff  had  a  right  to  presume,  that  the  agents 
of  the  defendant  transacted  their  business  properly,  and  under  suffi- 
cient authority.  Does  not  this  involve,  also,  that  the  plaintiff  had  a 
right  to  presume,  that  it  was  the  business  of  the  superintendent  of 
roads  to  purchase  material  for  the  city  upon  the  credit  of  the  city, 
and  that  he  had  authority  so  to  do?  This  cannot  be  maintained. 
It  is  fundamental,  that  those  seeking  to  deal  with  a  municipal  cor- 
poration through  its  officials,  must  take  great  care  to  learn  the  nature 
and  extent  of  their  power  and  authority.  {Hodges  v.  Buffalo,  2 
Denio,  110;  cited  33  N.  Y.,  293;  Cornell  v.  Guilford,  1  Den.,  510; 
Savings  Bank  v.  Winchester,  8  Allen,  109.)  The  plaintiff  cites 
United  States  Bajik  v.  Dandridge  (12  Wheat.,  70).  But  there  it  is 
said  that  if  the  charter  imposes  restrictions  they  must  be  obeyed. 
Could  the  plaintiff  presume  that  it  was  the  duty  of  the  defendant  to 
keep  the  Kingsbridge  road  in  repair?  No;  he  must  look  to  its  char- 
ter to  learn  of  that  duty.  The  same  instrument  would  show  him  just 
how  it  must  obtain  the  material  to  perform  that  duty.  The  Gas 
ComiKinyN.  San  Francisco  (9  Cal.,  453)  is  also  cited.  The  real  ques- 
tion there  decided  was,  that  a  city  can  be  held  to  have  incurred  a 
liability  otherwise  than  by  ordinance.  There  was  no  stress  in  that 
case  upon  any  inhibitions  in  the  charter  of  the  city.  The  result  was 
arrived  at  by  a  divided  court. 

But  the  main  reliance  of  the  plaintiff,  is  upon  the  proposition  that 
the  defendant,  having  appropriated  the  materials  of  the  plaintiff  and 
used  them,  is  bound  to  deal  justly  and  to  pay  him  the  value  of  them. 
The  case  of  Nelson  v.  The  Mayor  (63  N.  Y.,  535)  is  cited.  The 
learned  judge  who  delivered  the  opinion  in  that  case  does,  indeed, 
use  language  which  approaches  the  plaintiff's  proposition;  but  the 
judgment  in  that  case  did  not  go  upon  the  doctrine  there  put  forth; 
and  when  the  opinion  is  scrutinized  it  does  not  quite  cover  this  case. 
It  is  said:  "  If  it  (the  city),  obtains  property  under  a  void  contract, 
and  actually  uses  the  property,  and  collects  the  value  of  it  from 
'property  owners  by  means  of  assessments,  the  plainest  principles  of 
justice  require  that  it  should  make  compensation,  for  the  value  of 
such  property,  to  the  person  from  whom  it  was  obtained."  The 
words  we  have  marked  in  italics  indicate  a  difference  between  the 
two  propositions;  though  it  is  to  be  admitted,  not  a  great  difference 
in  the  principles  upon  which  each  rests.  The  case  in  the  California 
courts  (Argenti  v.  San  Francisco,  16  Cal.,  255),  goes  upon  the  ground 


MCDONALD   V.   MAYOR,   &C.,   OF   NEW   YORK.  519 

set  forth  in  the  opinion  in  Nelsoii's  Case,  (supra).     There  is,  how- 
ever, a  more  radical  eiifference,   than  that  above  noted,  in  the  two 
cases  cited  and  that  in  hand.     In  those  two  cases  the  w^ay  was  open 
for  implying  a  promise  to  pay  what  the  property  was  worth,  if  with  no 
disregard  of  statute  law,  such  an  implication  was  admissible;  that  is 
to  say,  there  was  in  those  cases,  so  far  as  appears  from  the  facts, 
no  express  inhibition  upon  the  city  that  it  should  not  incur  a  liability 
save  by  an  express  contract.     Here  there  is  an  express  legislative 
inhibition  upon  the  city,   that  it  may  not  incur  liability  unless  by 
writing  and  by  record.     How  can  it  be  said  that  a  municipality  is 
liable  upon  an  implied  promise,  when  the  very  statute  which  continues 
its  corporate  life,  and  gives  it  its  powers,  and  prescribes  the  mode 
of  the  exercise  of  them,  says,  that  it  shall  not,  and  hence  cannot, 
become  liable,  save  by  express  promise?     Can  a  promise  be  implied, 
which  the  statute  of  frauds  says  must  be  in  writing  to  be  valid?     How 
do  the  cases  differ?     The  Bank  of  the   United  States  v.  Dandridge 
(supra),  which  is  a  leading  case  upon  the  doctrine  of  the  liability  of 
a  corporation  aggregate,  upon  a  promise  implied,  holds,  as  we  have 
already  said,  that  if  the  charter  imposes  restrictions  upon  the  manner 
of  contracting,  they  must  be  observed.     And   the  California   cases 
above  cited,  concede  the  same.     It  is  plain,   that  if  the  restriction 
put  upon  municipalities  by  the  legislature,  for  the  purposes  of  re- 
ducing and  limiting  the  incurring  of  debt  and  the  expenditure  of  the 
public  money,  may  be  removed,  upon  the  doctrine  now  contended  for, 
there  is  no  legislative  remedy  for  the  evils  of  municipal  government, 
which  of  late  have  excited  so  much  attention  and  painful  foreboding. 
Restrictions  and  inhibition  by  statute  are  practically  of  no  avail,  if 
they  can  be  brought  to  naught  by  the  unauthorized  action  of  every 
official  of  lowest  degree,   acquiesced    in,  or  not   repudiated,   by  his 
superiors.     Doiiovan  v.  The  Mayor,  etc.  (33  N.  Y.,  291),  seems  to  be 
an  authority  in  point,  though  the  exact  question  now  presented  was 
not  considered.     And  incidental  remarks  of  Denio,  J.,  in  Peterson  v. 
The  Mayor  (17  N.  Y.,  449),  are  to  the  same  purport.     And  see  Peck 
V.  Burr  (10  N.   Y.,   294).     The  views  here  set  forth,  are  not  to  be 
extended  beyond  the  facts  of  the  case.     It  may  be,  that  where  a  munic- 
ipality has  come  into  the  possession  of  the  money  or  the  property  of 
a  person,  without  his  voluntary  intentional  action  concurring  therein, 
the  law  will  fix  a  liability  and  imply  a  promise  to  repay  or  return  it. 
Thus,  money  paid  by  mistake,  money  collected  for  an  illegal  tax  or 
assessment;  property  taken  and  used  by  an  official,  as  that  of  the 
city,  when  not  so ;  —  in  such  cases,  it  may  be  that  the  statute  will  not 
act  as  an  inhibition.     The  statute  may  not  be  carried  further  than  its 
intention,  certainly  not   further  than    its  letter.     Its    purpose  is  to 
forbid  and  prevent  the  making  of  contracts  by  unauthorized  official 
agents,  for  supplies  for  the  use  of  the  corporation.     This    opinion 
goes  no  further  than  to  hold,  that  where  a  person  makes  a  contract 
with  the  city  of  New  York  for  supplies  to  it,  without  the  requirements 


520  LITCHFIELD   V.   BALL0T7. 

of  the  charter  being  observed,  he  may  not  recover  the  value  thereof 
upon  an  implied  liability. 

The  judgment  should  be  affirmed. 

All  concur.  Judgment  affirmed.^ 


LITCHFIELD   v.   BALLOU. 

1885.     114  U.  S.  190. 

This  was  a  bill  in  chancery  to  enforce  payment  of  moneys  loaned 
to  a  municipality  in  violation  of  law,  and  for  which  it  had  been  held 
that  an  action  could  not  be  maintained  at  law.  Buchanan  v. 
Litchfit'ld,  102  U.  S.  278.  The  facts  making  the  case  are  stated  in 
the  opinion  of  the  court. 

John  M.  Palmer  and  B.  S.  Edwards  for  appellant. 

D.  T.  Littler  for  appellees. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  in  chancery  of  the  Circuit  Court 
I'or  the  Southern  District  of  Illinois. 

The  suit  was  commenced  by  a  bill  brought  by  Ballou  against  the 
city  of  Litchfield.  Complainant  alleges  that  he  is  the  owner  of  bonda 
issued  by  the  city  of  Litchfield  to  a  very  considerable  amount.  That 
the  money  received  by  the  city  for  the  sale  to  him  of  these  bonds  was 
used  in  the  construction  of  a  system  of  water  works  for  the  city,  of 
which  the  cit}'  is  now  the  owner.  He  alleges  that  one  Buchanan,  who 
«yas  the  owner  of  some  of  these  bonds,  brought  suit  on  them  in  the 
Same  court  and  was  defeated  in  his  action  in  the  Circuit  Court  and  in 
the  Supreme  Court  of  the  United  States,  both  of  which  courts  held 
the  bonds  void. 

He  now  alleges  that,  though  the  bonds  are  void,  the  city  is  liable  to 
him  for  the  money  it  received  of  him,  and  as  by  the  use  of  that 
money  the  water  works  were  constructed,  he  prays  for  a  decree 
against  the  city  for  the  amount,  and  if  it  is  not  paid  within  a  reason- 
able time  to  be  fixed  by  the  court,  that  the  water  works  of  the  city  be 

^  "To  permit  a  recovery  upon  a,  quantum  meruit  solely  for  a  work  which  can  be 
done  only  by  authority  of  a  statute,  would  necessarily  lead  to  the  conclusion  that  a 
statute  might  be  wholly  ignored,  and  the  county  bound,  provided  it  received  the 
worth  of  its  money. 

"...  The  distinction  must  be  kept  in  view  between  those  cases  which  hold  that  a 
municipal  corporation,  which  has  received  the  benefit  of  money,  labor,  or  property 
upon  a  contract  made  without  due  formality,  and  which  is  not  prohibited  by  statute, 
is  liable  to  the  extent  of  the  value  of  what  lias  been  received  and  appropriated,  and 
those  cases  where  the  municipality  has  power  to  act  only  by  virtue  of  a  statute,  and, 
in  attempting  to  exercise  the  power,  has  failed  to  observe  the  statutory  requirements. 
In  the  one  class  of  cases  the  power  to  contract  exists,  while  in  the  other  the  power  to 
contract  does  not  exist,  because  of  the  failure  of  the  municipality  to  that  which  alone 
could  give  it  such  power."  Robinson,  C.  J.,  in  \Vro)i(]ht-Iron  Bridqe  Co.  v.  Board  of 
Com'rs  of  Hendricks  Coiinti/,  Appellate  Court  of  Indiana,  a.  d.  1898,  48  Northeastern 
Reporter,  1050,  p.  1052.  —  JEd. 


LITCHFIELD    V.    BALLOU.  521 

Bold  to  satisfy  the  decree.  The  bill  also  charges  that  he  was  misled 
to  purchase  the  bouds  by  the  false  statemeuts  of  the  ofllcers,  agents 
and  attorneys  of  the  city,  that  the  bonds  were  valid.  Other  parties 
came  into  the  litigation,  and  answers  were  tiled.  The  answer  of  the 
city  denies  any  false  representations  as  to  the  character  of  the  bonds, 
denies  that  all  the  money  received  for  them  went  into  the  water 
works,  but  part  of  it  was  used  for  other  purposes,  and  avers  that  a 
larger  part  of  the  sum  paid  for  the  water  works  came  from  other 
sources  than  the  sale  of  these  bonds,  and  it  cannot  now  be  ascertained 
how  much  of  that  money  went  into  the  works. 

The  case  came  to  issue  and  some  testimony  was  taken,  the  sub- 
stance of  which  is  that  much  the  larger  part  of  the  money  for  which 
the  bonds  were  sold  was  used  to  pay  the  contractors  who  built  the 
water  works,  while  a  very  considerable  proportion  of  the  cost  of  these 
works  was  paid  for  out  of  taxation  and  other  resources  than  the 
bonds. 

There  is  no  evidence  of  any  false  or  fraudulent  representations  by 
the  authorized  agents  of  the  city. 

The  bouds  were  held  void  in  the  case  of  Buchanan  v.  Litchfield^ 
102  U.  S.  278,  because  they  were  issued  in  violation  of  the  following 
provision  of  the  Constitution  of  Illinois : 

"Article  IX. 

"  Section  12.  No  county,  city,  township,  school  district,  or  other 
municipal  corpoi-ation,  shall  be  allowed  to  become  indebted  in  any 
manner,  or  for  any  purpose,  to  an  amount,  including  existing  indebted- 
ness, in  the  aggregate  exceeding  five  per  centum  on  the  value  of 
the  taxable  property  therein,  to  be  ascertained  by  the  last  assessment 
for  State  and  county  taxes,  previous  to  the  incurring  of  such 
indebtedness." 

It  was  made  to  appear  as  a  fact  in  that  case,  that  at  the  time  the 
bonds  were  issued  the  city  had  a  pre-existing  indebtedness  exceeding 
five  percent,  of  the  value  of  its  taxable  property,  as  ascertained  by  its 
last  assessment  for  State  and  county  taxes. 

The  bill  in  this  case  is  based  upon  the  fact  that  the  bo7ids  are  for 
that  reason  void,  and  it  makes  the  record  of  the  proceedings  in  that 
suit  an  exhibit  in  this.  But  the  complainant  insists  that,  though  the 
bonds  are  void,  the  city  is  bound,  ex  a-quo  et  bono,  to  return  the 
money  it  received  for  them.  It  therefore  prays  for  a  decree  against 
the  city  for  the  amount  of  the  money  so  received. 

There  are  two  objections  to  this  proposition:  1.  If  the  city  is 
liable  for  this  money,  an  action  at  law  is  the  appropriate  remedy. 
The  action  for  money  had  and  received  to  plaintiffs'  use  is  the  usual 
and  adequate  remedy  in  such  cases  where  the  claim  is  well  founded, 
and  the  judgment  at  law  would  be  the  exact  equivalent  of  what  ia 
prayed  for  in  this  bill,  namely,  a  decree  for  the  amount  against  the 
city,  to  be  paid  within  the  time  fixed  by  it  for  ulterior  proceedings. 


522  LITCHFIELD    V.   BALLOU. 

In  this  view  the  present  bill  fails  for  want  of  equitable  jurisdictioa 

2.  But  there  is  no  more  reason  for  a  recovery  on  the  implied 
contract  to  repay  the  money,  than  on  the  express  contract  found  in 
the  bonds. 

The  language  of  the  Constitution  is  that  no  city,  &c.,  "  shall  be  al- 
lowed to  become  indebted  in  any  manner  or  for  any  purpose  to  an 
amount,  including  existing  indebtedness,  in  the  aggregate  exceeding 
five  per  centum  on  the  value  of  its  taxable  property."  It  shall  not 
become  indebted.  Shall  not  incur  any  pecuniary  liability.  It  shall 
not  do  this  in  any  manner.  Neither  by  bonds,  nor  notes,  nor  by 
express  or  implied  promises.  Nor  shall  it  be  done  lor  SiUy  purpjose. 
No  matter  how  urgent,  how  useful,  how  unanimous  the  wish.  There 
stands  the  existing  indebtedness  to  a  given  amount  in  relation  to  the 
sources  of  payment  as  an  impassable  obstacle  to  the  creation  of  any 
further  debt,  in  any  manner,  or  for  any  purpose  whatever. 

If  this  prohibition  is  worth  anything  it  is  as  effectual  against  the 
implied  as  the  express  promise,  and  is  as  binding  in  a  court  of  chan- 
cery as  a  court  of  law. 

Counsel  for  appellee  in  their  brief,  recognizing  the  difficulty  here 
pointed  out,  present  their  view  of  the  case  in  the  following  language: 

"  The  theory  of  relief  assumed  by  the  bill  is,  that  notwithstanding 
the  bonds  were  wholly  invalid,  and  no  suit  at  law  could  be  success- 
fully maintained  either  upon  the  bonds  or  upon  any  contract  as  such 
growing  out  of  the  bonds,  yet  as  the  City  of  Litchfield  is  in  posses- 
sion of  the  money  received  for  the  bonds,  or,  which  is  the  same 
thing,  its  equivalent  in  property  identified  as  having  been  procured 
with  this  money  and  having  repudiated  and  disclaimed  its  liability  in 
respect  of  the  bonds,  it  must,  upon  well  established  equitable  princi- 
ples, restore  to  the  complainants  what  it  actually  received,  or  at  least 
so  much  of  what  it  received  as  is  shown  now  to  be  in  its  possession 
and  in  its  power  to  restore." 

If  such  be  the  theory  of  the  bill,  the  decree  of  the  court  is  quite 
unwarranted  by  it.  The  money  received  by  the  city  from  Ballou  has 
long  passed  out  of  its  possession,  and  cannot  be  restored  to  com- 
plainant. Neither  the  specific  money  nor  any  other  money  is  to  be 
found  in  the  safe  of  the  city  or  anywhere  else  under  its  control.  And 
the  decree  of  the  court,  so  far  from  attempting  to  restore  the  specific 
money,  declares  that  there  is  due  from  the  City  of  Litchfield  to  com- 
plainants a  sum  of  money,  not  that  original  money,  but  a  sum  equal 
in  amount  to  the  bonds  and  interest  on  them  from  the  day  of  their 
issue.  Is  this  a  decree  to  return  the  identical  money  or  property 
received,  or  is  it  a  decree  to  pay  as  on  an  implied  contract  the  sum 
received,  with  interest  for  its  use? 

As  regards  the  water  works,  into  which  it  is  said  the  money  was 
transmuted;  if  the  theory  of  counsel  is  correct,  the  water  works 
should  have  been  delivered  up  to  plaintiffs  as  representing  their 
money,  as  property  which  they  have  purchased,  and  which,  since  the 


LITCHFIELD   V.   BALLOU.  523 

contract  has  been  declared  void,  is  their  property,  as  representing 
their  money.  In  this  view  the  restoration  to  complainants  of  the 
property  which  represents  their  money  puts  an  end  to  obligations  on 
both  sides  growing  oui  of  the  transaction.  The  complainants, 
having  recovered  what  v.as  theirs,  have  no  further  claim  on  the  city. 
The  latter  having  discharged  its  trust  by  returning  what  complainant 
has  elected  to  claim  as  his  own,  is  no  longer  liable  for  the  money  or 
any  part  of  it. 

But  here  also  the  decree  departs  from  what  is  now  asserted  to  be 
the  principle  of  the  bill.  Having  decreed  an  indebtedness  where  none 
can  exist,  and  declared  that  complainant  has  a  lien  on,  not  the  owner- 
ship of,  the  water  works,  it  directs  a  sale  of  the  water  works  for  the 
paj^ment  of  this  debt  and  the  satisfaction  of  this  lien. 

If  this  be  a  mode  of  pursuing  and  reclaiming  specific  property 
into  which  money  has  been  transmuted,  it  is  a  new  mode.  If  the 
theory  of  appellee's  counsel  be  true,  there  is  no  lien  on  the  property. 
There  is  no  debt  to  be  secured  by  a  lien.  That  theory  discards  the 
idea  of  a  debt,  and  pursues  the  money  into  the  property,  and  seeks 
the  property,  not  as  the  property  of  the  city  to  be  sold  to  pay  a  debt, 
but  as  the  property'  of  complainant,  into  which  his  money,  not  the 
city's,  has  been  invested,  for  the  reason  that  there  was  no  debt  created 
by  the  transaction. 

The  money  received  on  the  bonds  having  been  expended,  with  other 
funds  raised  by  taxation,  in  erecting  the  water  works  of  the  city,  to 
impose  the  amount  thereof  as  a  lien  upon  these  public  works  would  be 
equally  a  violation  of  the  constitutional  prohibition,  as  to  raise 
against  the  city  an  implied  assumpsit  for  money  had  and  received. 
The  holders  of  the  bonds  and  agents  of  the  city  are  participes  criminis 
in  the  act  of  violating  that  prohibition,  and  equity  will  no  more  raise 
a  resulting  trust  in  favor  of  the  bondholders  than  the  law  will  raise 
an  implied  assumpsit  against  a  public  policy  so  strongly  declared. 

But  there  is  a  reason  why  even  this  cannot  be  done. 

Leaving  out  of  view  the  question  of  tracing  complainants'  money 
into  these  works,  it  is  very  certain  that  there  is  other  money  besides 
theirs  in  the  same  property.  The  laud  on  which  these  works  are 
constructed  was  bought  and  paid  for  before  the  bonds  were  issued  or 
voted.  The  streets  through  which  the  pipes  are  laid  is  public  prop, 
erty  into  which  no  money  of  the  complainants  entered.  INIuch,  also, 
of  the  expense  of  construction  was  paid  by  taxation  or  other  resources 
of  the  city.  How  much  cannot  be  known  with  certainty,  because, 
though  the  officers  of  the  city  testify  that  on  the  books  a  separate 
water- works  account  was  kept,  there  is  no  evidence  that  the  funds 
which  went  to  build  these  works  are  traceable  by  those  books  to  their 
source  in  any^  instance. 

If  the  complainants  are  after  the  money  they  let  the  city  have,  they 
must  clearly  identify  the  money,  or  the  fund,  or  other  property  which 
represents  that  money,  in  such  a  manner  that  it  can  be  reclaimed  and 


524       travelers'  insurance  company  v.  johnson  city. 

delivered  without  taking  other  property  with   it,  or   injuring  other 
persons  or  interfering  with  others'  rights. 

It  is  the  consciousness  that  this  cannot  be  done  which  caused  the 
court  and  counsel  to  resort  to  the  idea  of  a  debt  and  a  lien  which  can- 
not be  sustained.  A  lien  of  a  person  on  his  own  property,  which  is 
and  has  always  been  his,  in  favor  of  himself,  is  a  novelty  which 
ouly  the  necessities  of  this  case  could  suggest. 

Another  objection  to  this  assertion  of  a  right  to  the  property  is, 
that  the  bondholders,  each  of  whom  must  hold  a  part  of  whatever 
equity  there  is  to  the  property,  are  numerous  and  scattered,  and  the 
relative  amount  of  the  interest  of  each  in  this  property  could  hardly 
be  correctly  ascertained.  The  property  itself  cannot  be  divided ;  its 
value  consists  in  its  unity  as  a  system  of  water  works  for  the  city. 
"VVithcut  the  land  and  the  use  of  the  streets,  the  value  of  the  remainder 
of  the  plant  is  gone.  In  these  complainants  can  have  no  equity. 
The  decree  of  the  court  is  recersed  and  the  case  remanded^  with  direc- 
tions to  dismiss  the  bill. 
Mr.  Justice  Harlan  dissented. 


TRAVELERS'   INSURANCE  COMPANY  v.   JOHNSON  CITY. 

1900.     99  Fed.  663. 

Suit  at  law  to  recover  from  the  defendant  $50,000  and  interest  from 
January  5,  1892,  as  money  had  and  received  to  the  use  of  the  defend- 
ants; this  amount  having  been  paid  by  plaintiff  to  the  Charleston, 
Cincinnati  &  Chicago  R.  R.  to  buy  bonds  of  the  defendant.^ 

Taft,  Circuit  Judge.  .  .  .  The  question  for  our  consideration  here  is, 
whether  one  who,  for  full  value,  purchases  in  the  market  negotiable 
bonds  paj^able  to  bearer,  and  unindorsed,  issued  by  a  municipal  cor- 
poration to  a  railroad  company  of  another  state,  to  whom  it  has  no 
power  to  issue  the  bonds,  in  payment  of  a  subscription  to  the  com- 
pany's stock  to  which  it  has  no  power  to  make  a  subscription,  after 
the  railroad  has  been  built,  and  the  depot  has  been  constructed  on  the 
company's  ground,  and  the  certificates  for  the  stock  subscribed  for 
have  been  delivered  to  the  municipal  corporation,  all  in  accordance 
with  the  condition  of  the  subscription  agreement,  may  recover  from 
the  municipal  corporation  the  money  paid  by  it  in  open  market  for  the 
bonds,  on  the  ground  that  that  amount  has  been  expended  in  conferring 
upon  the  city  the  benefit  of  the  railroad  and  the  depot  and  the  stock, 
when  it  further  appears  that  the  corporation  has  power  to  make  sub- 

1  This  short  statement  is  substituted  for  that  of  the  Reporter.  Part  of  opinion 
omitted.  —  Ed. 


travelers'    insurance   company   v.   JOHNSON   CITY.  525 

scriptions  for  the  stock  of  a  domestic  corporation,  and  to  pay  for  the 
same  in  its  bonds.  We  think  the  question  must  be  answered  in  the 
negative.  The  cause  of  action  is  for  money  had  and  received  to 
the  use  of  the  city.  Such  an  action  is  based,  not  on  an  express  or 
implied  contract,  but  upon  an  obligation  which  the  law  supplies  from 
the  circumstances,  because,  ex  ccquo  et  bono,  the  defendant  should  pay 
for  the  benefit  which  he  has  derived  at  the  expense  of  the  plaintiff.  It 
is  an  obligation  which  the  law  supplies,  because,  otherwise,  it  would 
result  in  the  unjust  enrichment  of  the  defendant  at  the  cost  of  the 
plaintiff.  It  is  an  obligation  which  arises  only  when  the  defendant  has 
received  money  or  property  from  the  plaintiff  and  appropriated  the 
same  to  his  own  use,  either  when  he  might  have  elected  not  to  take  it, 
or,  having  the  power  to  do  so,  might  return  the  benefit  tlius  conferred 
to  the  plaintiff,  and  fails  to  do  so.  In  this  case  the  three  benefits  con- 
ferred on  the  plaintiff  are  :  (1)  The  issuing  of  the  stock  ;  (2)  the  con- 
struction of  the  railroad;  and  (3)  the  building  of  the  depot.  As  to 
the  first,  it  has  been  conclusively  adjudged  by  the  supreme  court  of 
Tennessee  in  the  case  of  Johnson  City  v.  Charleston,  C.  &  C.  R.  Co., 
100  Tenn.  138,  44  S.  AV.  670,  in  which  the  plaintiff  and  the  defend- 
ants were  adversary  parties,  that  the  cit}'  had  no  power  to  subscribe 
to  the  stock  of  the  railroad  company.  This  being  so,  the  city  did  not 
become  a  stockholder  in  the  railroad  company,  and  did  not  receive  the 
benefit  of  the  stock  purporting  to  be  issued.  The  contract  of  sub- 
scription was  utterly  void,  and  the  certificate  was  but  waste  paper.  It 
imposed  no  obligation  upon  the  railroad  company  or  its  stockholders  ; 
it  conferred  no  benefit  upon  the  city.  The  case  of  Bank  v.  Kennedy, 
167  U.  S.  362,  17  Sup.  Ct.  831,  42  L.  Ed.  198,  leaves  no  doubt  on  this 
point.  There  a  national  bank,  without  power  to  do  so  under  the  na- 
tional banking  laws,  purchased  stock  in  a  savings  bank  of  the  state 
of  California.  It  was  held  that,  in  the  absence  of  poorer  to  own  the 
stock,  the  national  bank  did  not  become  a  stockholder,  and  was  not 
liable  to  pay  the  assessment  upon  the  stock  for  the  benefit  of  creditors, 
although  in  that  case  it  had  received,  and  had  not  returned,  dividends 
issued  to  it  as  a  stockholder.  The  other  benefits  said  to  have  been 
conferred  upon  the  city  were  the  construction  of  the  railroad  and  the 
building  of  the  depot.  As  the  railroad  and  the  depot  were  constructed 
on  the  land  of  the  railroad  company,  they  did  not  go  into  the  possession 
of  the  city  as  its  property.  Had  the  railroad  company,  without  any 
subscription  by  the  city,  built  its  railroad  through  the  city,  and  erected 
its  station  there,  it  certainly  could  not  be  claimed  that  this  would  have 
given  the  railroad  company  a  right  of  action  against  the  city  for  the 
value  of  the  benefits  conferred  on  the  city  by  such  construction,  how- 
ever great  those  benefits  might  have  been  in  adding  to  the  prosperity 
of  the  city  and  its  inhabitants.  In  the  absence  of  an  express  agree- 
ment to  pay  for  such  a  benefit,  no  tacit  agreement  to  do  so  can  be 
inferred.  Where  the  conferring  of  the  benefits  was  induced  by  an 
express  agreement  which  is  void,  the  law  will  not  supply  an  obligation 


526       travelers'  insurance  company  v.  johnson  city. 

to  pay  on  the  ground  of  unjust  enrichment  as  a  quasi  contract,  unless, 
in  the  absence  of  the  express  agreement,  a  real,  but  tacit,  contract 
could  have  been  inferred  from  the  circumstances.  The  benefit  indirectly 
conferred  on  one  man's  property  by  the  improvement  of  the  land  of 
another  is  not  an  unjust  enrichment  of  the  other.  Hence,  ex  wquo  et 
bono,  no  obligation  in  law  to  pay  for  it  arises.  The  case  in  hand  is 
not  distinguishable  in  principle  from  that  of  Railroad  Co.  v.  Bensley, 
6  U.  S.  App.  115,  2  C.  C.  A.  480,  51  Fed.  738,  19  L.  R.  A.  796,  de- 
cided by  this  court,  in  which  Mr.  Justice  Brown  delivered  the  opinion. 
In  that  case  the  owners  of  lots  in  Chicago  in  close  proximity  to  the 
lot  on  which  it  was  proposed  to  construct  the  Chicago  Board  of  Trade 
Building  entered  into  a  written  contract  with  the  owner  of  the  lot  by 
which  they  agreed  that,  if  he  would  sell  the  lot  to  the  board  of  trade 
at  a  low  price,  so  as  to  induce  the  board  of  trade  to  buy  it,  and  if  the 
board  of  trade  should  construct  its  building  thereon  within  a  certain 
time,  they  would  pay  the  owner  of  the  lot,  each  of  them,  a  certain  sum 
of  money.  The  owner  of  the  lot  accordingly  sold  it  to  the  board  of 
trade  at  the  price  named  in  the  agreement,  but  the  building  was  not 
constructed  within  the  time  fixed  by  the  agreement.  Suit  was  brought 
by  the  owner  to  recover  from  the  contractors  the  amounts  stipulated 
to  be  paid  in  the  contract  after  the  building  had  been  constructed. 
The  court  held  that  time  was  of  the  essence  of  the  contract,  and  was 
made  a  condition  precedent  to  the  obligation  to  pay,  and  that,  there- 
fore, no  recovery  could  be  had  under  the  contract.  The  plaintiff  then 
sought  to  recover  on  a  quantum  valehat,  and  it  was  held  that  the  benefit 
conferred  was  not  one  which  created  an  obligation  on  the  part  of  the 
lot  owners  to  pay,  even  though  it  appeared  that,  owing  to  the  erection 
of  the  Board  of  Trade  Building,  they  had  been  enabled  to  sell  their 
land  at  a  largely  increased  price.     The  court  said  : 

"  Had  the  defendant  received  a  benefit  from  the  performance  of  this 
contract  to  which  he  would  not  have  been  entitled  had  the  contract  not 
been  made,  the  result  might  have  been  different ;  but,  as  a  matter  of 
fact,  it  received  no  benefit  from  the  erection  of  this  building  which  did 
not  accrue  to  other  owners  of  neighboring  property  who  did  not  sign 
the  contract  or  subscribe  in  aid  of  the  purchase  of  the  lot,  and  as  to 
such  persons  it  would  not  be  claimed  that  liability  arises.  Its  acqui- 
escence in  the  completion  of  the  building  is  immaterial,  since  it  had  no 
right  to  interfere.  It  is,  then,  only  upon  the  basis  of  the  special  con- 
tract to  pay  that  an  action  will  lie,  and  this  contract  not  having  been 
performed  by  the  plaintiff,  there  can  be  no  recovery." 

Mr.  Justice  Brown  mentioned,  as  a  most  satisfactory  case  upon  this 
point.  Railway  Co.  v.  Thomjjson,  24  Kan.  170,  and  said : 

"  This  was  an  action  upon  certain  bonds  issued  by  the  city  of  Par- 
sons in  aid  of  the  construction  of  the  plaintiff's  road,  and  subject  to  a 
condition  that  the  plaintiff  should  '  have  its  road  constructed  and  in 
operation  on  or  before  the  first  day  of  July,  1878.'  It  was  held  that 
time  was  of  the  essence  of  this  contract,  and  that  the  failure  of  the 


travelers'   insurance   company   v.   JOHNSON   CITY.  527 

plaintiff  to  complete  the  road  by  the  da}-  named  was  fatal  to  a  recovery, 
notwithstanding  the  road  was  completed  shortly  after  that,  and  the 
city  received  the  benefit  of  it.  In  delivering  the  opinion  of  the  court, 
Mr,  Justice  Brewer,  now  of  the  Supreme  Court  of  the  United  States, 
observed  :  '  Nor  is  this  a  case  of  part  performance  by  one  party  and 
the  acceptan-^e  by  the  other  of  the  proceeds  of  such  performance.  The 
work  done  by  the  company  was  upon  its  own  grounds.  It  owns  the 
road  absolutely  and  entirely.  It  has  parted  with  nothing  which  the  city 
has  received.  TTie  city  has  accepted  and  appropriated  none  of  its  labor 
and  none  of  its  materials.  It  has  received  the  benefit  of  the  work  in 
no  other  sense  than  every  individual  in  the  community,  and  in  no  other 
way  than  of  one  person  receiving  benefit  from  his  neighbor's  improve- 
ment of  his  own  property.'  " 

While  these  were  cases  in  which  the  plaintiff  failed  to  recover  on 
the  express  contract,  not  because  it  was  idtra  vires  and  void,  but  be- 
cause the  plaintiff  failed  to  comply  with  a  condition  precedent  in  such 
contract,  the  principle  upon  which  they  were  placed  is  entirely  appli- 
cable to  the  case  at  bar.  This  is  made  apparent  by  the  language  of 
Mr.  Justice  Jackson  in  delivering  the  opinion  in  Hedges  v.  Dixon  Co.y 
150  U.  S.  184-186,  14  Sup.  Ct.  71,  37  L.  Ed.  1044.  There  a  county 
had  issued  bonds  in  aid  of  a  railroad  in  excess  of  its  authority,  and 
the  holders  of  the  bonds  filed  a  bill  in  which  they  asked  from  the  court 
the  relief  of  cutting  down  the  obligation  of  the  bonds  proportionately 
so  as  to  bring  it  within  the  lawful  amount.  The  Supreme  Court  held 
that  the  relief  could  not  be  granted,  and,  referring  to  the  cases  of 
Louisiana  v.  Wood,  102  U.  S.  294,  26  L.  Ed.  153,  and  Read  v.  City 
of  Plaftsmouth,  107  U.  S.  568,  2  Sup.  Ct.  208,  27  L.  Ed.  414,  in  which 
it  had  been  permitted  to  bondholders  of  bonds  issued  without  authority 
to  recover  from  the  municipal  corporation  issuing  the  bonds  the  amount 
of  money  received  by  it  and  expended  by  it  for  lawful  purposes  as 
money  had  and  received  to  its  use,  the  court  said: 

"  The  circumstances  and  conditions  which  gave  the  holders  of  the 
bonds  an  equitable  right  in  those  cases  to  recover  from  the  munici- 
pality the  money  which  the  bonds  represented  do  not  exist  in  the  case 
under  consideration,  where  the  county  received  no  part  of  the  proceeds 
of  the  bonds,  and  no  direct  money  benefit,  but  merely  derived  an  inci- 
dental advantage  arising  from  the  construction  of  the  railroad,  upon 
which  advantage  it  would  be  impossible  for  the  court  to  place  a  pe- 
cuniary estimate,  or  to  say  that  it  would  be  equal  to  such  portion  of 
the  bonds  in  question  as  the  county  could  lawfully  have  issued." 

For  these  reasons  we  think  that  there  is  no  ground  upon  which  to 
base  a  recovery  for  money  had  and  received  to  the  use  of  Johnson  City. 

The  cases  relied  upon  by  the  plaintiff  are  Read  v.  Citij  of  Plattsmoidh, 
107  U.  S.  568,  2  Sup.  Ct.  208,  27  L.  Ed.  414  ;  Chapman  v.  Douglass 
Co.,  107  U.  S.  348,  2  Sup.  Ct.  62,  27  L.  Ed.  378;  Parkershurg  v. 
Broicv,  106  U.  S.  487,  1  Sup.  Ct.  442,  27  L.  Ed.  238;  Louisiana  v. 
Wood,  102  U.  S.  294,  26  L.  Ed.  153  ;  Hitchcock  v.  Galveston,  96  U.  S. 


528  travelers'   insurance   company   v.   JOHNSON   CITY. 

341,  24  L.  Ed.  659.  It  is  contended  that  they  sustain  the  view  that 
money  paid  for  the  benefit  of  the  city  on  the  faith  of  the  issue  of 
invalid  bonds  may  be  recovered  in  an  action  for  money  had  and  re- 
ceived. It  will  be  found  that,  in  every  case  cited  but  one,  the  city 
or  county  or  municipal  corporation  which  issued  the  bonds  received 
the  money  or  labor  or  material  furnished,  and  that  it  was  expended  in 
improving  the  property  of  the  city  or  other  corporation  in  a  manner  in 
which  the  city  had  power  to  improve  its  own  property.  In  Hitchcock 
V.  Galveston.,  suiwa^  the  benefit  conferred  upon  the  city  was  the  build- 
ing of  sidewalks,  which  the  city  had  the  right  to  build  and  pay  for,  but 
which,  it  was  found,  it  had  no  right  to  pay  by  issuing  bonds.  In 
Louisiana  v.  Wood  the  money  received  for  the  bonds  was  used  partly 
by  the  city  in  payment  and  redemption  of  matured  bonds  and  coupons 
and  warrants  of  the  city,  lawfully  issued,  and  part  of  it  was  deposited 
in  the  city  treasury.  In  Parkershurg  v.  Brown,  which  is  the  excep- 
tion, the  money  which  was  received  for  the  bonds  was  used  to  purchase 
land  and  to  erect  a  manufacturing  establishment,  the  operation  of 
which  it  was  supposed  would  benefit  the  city.  The  bonds  were  de- 
clared void  for  want  of  power  in  the  city  to  aid  private  manufacturing 
establishments.  The  relief  granted  by  the  court  was  not  to  hold  the 
city  as  for  money  had  and  received,  but  to  follow  the  property  into 
which  the  money  had  been  put,  and  to  sell  the  property,  and  distribute 
the  net  proceeds  thereof  to  those  with  whose  money  the  property  had 
been  purchased  and  improved.  In  Chajmian  v.  Douglass  Co.,  supra, 
a  county  in  Nebraska  bought  land  upon  which  to  erect  a  poor  house 
and  farm,  and  in  payment  therefor  issued  notes  for  four  equal  annual 
installments  of  the  purchase  price,  and  gave  a  mortgage  to  secure  the 
payment  of  the  notes.  It  was  decided  by  the  Supreme  Court  of  the 
State  that  the  county  could  not  bind  itself  to  pay  the  purchase  money 
by  notes,  or  to  secure  it  by  mortgage  upon  the  property,  but  its  power 
was  limited  to  a  payment  in  cash,  and  the  levy  of  an  annual  tax  to 
create  a  fund  wherewith  to  pay  the  residue.  It  was  held  that,  the 
contract  being  unauthorized  only  so  far  as  it  related  to  the  time  and 
mode  of  paying  the  purchase  mone}',  and  the  title  to  the  land  having 
passed  by  the  conveyance,  the  county  held  the  title  as  trustee  for  the 
benefit  of  the  vendor,  and  that,  unless  the  sum  due  on  the  purchase 
money  was  paid  within  a  reasonable  time,  the  county  might  be  required 
to  execute  a  deed  releasing  to  the  vendor  all  the  title  acquired  under 
his  deed.  In  Read  v.  City  of  Plattsmouth,  the  money  paid  for  the 
bonds  was  used  by  the  city  of  Plattsmouth  in  the  construction  of  a 
high  school  building.  The  power  of  the  city  to  issue  bonds  to  build 
a  high  school  was  questioned,  and  by  a  subsequent  act  the  bonds  issued 
were  validated  by  the  legislature.  At  the  time  the  bonds  were  issued 
it  could  not  lawfully  issue  them  in  the  amount  in  which  they  were 
issued.  It  was  held  that  the  city,  having  taken  the  money  and  put  it 
into  a  school  house,  which  it  owned,  was  bound  by  the  force  of  the 
transaction  to  repay  to  the  purchaser  of  its  void  bonds  the  consider- 


SPRINGFIELD   FURNITURE   CO.   V.   SCHOOL   DISTRICT   NO.   4       529 

ation  received  and  used  by  it,  or  its  lawful  equivalent,  and  that,  there- 
fore, the  enabling  act  validating  the  bonds  only  recognized  an  existing 
moral  and  legal  obligation,  and  was  valid.  It  thus  appears  that  in 
each  of  the  cases,  except  Parkershurcj  v.  Brown,  the  benefit  received 
by  the  municipal  corporation  was  money  paid  to  it  or  pi'operty  deliv- 
ered into  its  actual  possession  under  such  circumstances  that,  had  no 
express  contract  been  attempted,  a  tacit  contract  might  have  been 
inferred.  In  Parkersb^irg  v.  Brown  the  money  paid  was  followed,  as 
in  rem,  into  the  thing  bought  with  it. 

It  follows  that  the  judgment  of  the  court  was  correct,  and  it  must 
be  affirmed,  with  costs. ^ 


SPRINGFIELD    FURNITURE  CO.   v.   SCHOOL   DISTRICT 

NO.   4. 

1899.    67  Ark.  236. 

Complaint  in  equity  to  prevent  a  county  treasurer  from  paying  the 
furniture  company  for  certain  school  desks. ^ 

Wood,  J.  As  the  contract  of  purchase  was  made  by  only  two  di- 
rectors, and  not  at  a  regular  meeting,  nor  at  a  special  meeting  upon 
notice  to  the  third  director,  it  is  not  binding.  School  District  v.  Bennett, 
52  Ark.  511.  Likewise  the  warrants  were  also  invalid.  Nevertheless, 
under  the  circumstances,  the  school  district  was  not  in  an  attitude,  at 
the  time  of  filing  its  complaint,  to  repudiate  the  contract  and  refuse  to 
pay  for  the  desks.  The  proof  shows  that  the  district  accepted  the 
desks,  and  used  twenty-six  of  them  for  about  one  year,  and  did  not 
offer  to  rescind  the  contract  and  to  return  the  desks  until  the  bringing  of 
this  suit.  The  director  Johnson  testified  that  he  "  never  knew  anything 
about  a  contract  having  been  made  for  about  a  week  after  it  was  done." 
The  contract  was  entered  upon  June  23,  1896.  The  suit' was  brought 
June  30,  1897.  The  testimony  of  Johnson  shows  that  he  knew  the 
desks  had  been  received,  and  that  a  portion  of  them  were  being  used 
in  the  schoolhouse.  It  is  shown,  therefore,  that  all  the  directors  knew 
of  the  contract,  and  that  the  desks  had  been  received,  and  were  being 
used,  yet  no  action  was  had  by  the  board  to  annul  the  contract  and 
cancel  the  warrants  for  more  than  a  year.  Such  conduct  must  be 
taken  as  an  acquiescence  by  the  school  district  in  the  unauthorized 
contract  made  by  two  of  its  directors ;  for,  all  the  directors  having 
notice,  the  district  is  bound  in  the  same  manner  and  under  the  same 

1  See  also  Chelsea  Sav.  Bank  v.  Tromrood,  130  Fed.  410. 

*  This  short  statement  is  substituted  for  the  statement  of  facts  by  the  court.  —  Ed. 


530  EUSSELL   V.    THE    MEN    OF   DEVON. 

rules  as  an  Individ ual  would  be  bound.  The  contract  was  not  ultra 
vires.  Johnson,  the  only  director  not  notified  in  the  beginning,  after 
having  notice  of  what  was  done,  took  no  steps,  so  far  as  this  record 
discloses,  to  have  the  board  rescind  or  repudiate  the  unauthorized  act 
of  the  other  two  directors.  "  If  a  party  calls  upon  a  court  of  chancery 
to  put  forth  its  extraordinary  powers,  and  grant  him  purely  equitable 
relief,  he  may,  with  propriety,  be  required  to  submit  to  the  operation 
of  a  rule  which  always  applies  in  such  cases,  and  do  equity  in  order  to 
get  equity."     Fosclick  v.  Schall,  99  U.  S.  2.53. 

The  school  district  cannot  insist  upon  the  relief  sought.  It  has  not 
even  proposed  to  make  compensation  for  the  use  of  the  property  Avhile 
.  in  its  possession.  Nor  did  the  chancellor  impose  any  terms  whatever 
as  a  condition  for  granting  the  relief  prayed. 

The  decree  is  therefore  reversed,  and  the  complaint  is  dismissed 
here  for  want  of  equitj'. 

Battle,  J.,  not  participating. 


A 


-^^  ^  Section  II.  -  Liability  for  Torts. a^^j;^^^^^  ^^  ^^^ 

a.  General  Principles  of  Liability.        ,  ■  ,^^^   ^t^-'^^-yyi 

EUSSELL   V.   THE  MEN   DWELLING   IN   THE   COUNTY  ^^wf 

OF    DEVON.  4-'t-W^    ^ 

1788.     2  Term  Reports  (Durnford  Sr  East),  &(>1?-       dU^,Jsi\.4„^^     L^ 
This  was  an  action  upon  the  case  against  the  wew  dv^elling  in  the  county  L^rt^ 


of  Devon,  to  recover  satisfaction  for  an  injur}'  done  to  the  waggon  of  the 


Uy\^ 


plaintiffs  in  consequence  of  a  bridge  being  out  of  repair,  which  ought 
to  have  been  repaired  by  the  county  ;  to  which  two  of  the  inhabitants,  ^^^ 
for  themselves  and  the  rest  of  the  men  dwelling  in  that  county,  appeared,  t^  U' 
and  demurred  generally. 

Chambre,  in  support  of  the  demurrer.  C^C 

Gibbs,  contra.  ' 

Lord  "Kenton,  C.  J.  If  this  experiment  had  succeeded,  it  would 
have  been  productive  of  an  infinity  of  actions.  And  though  the  fear  of 
introducing  so  much  litigation  ought  not  to  prevent  the  plaintiff's  re- 
covering, if  b}'  law  he  is  entitled,  yet  it  ought  to  have  considerable 
weight  in  a  case  where  it  is  admitted  that  there  is  no  precedent  of  such 
an  action  having  been  before  attempted.  Many  of  the  principles  laid 
down  by  the  plaintiff's  counsel  cannot  he  controverted  ;  as  that  an  action 
would  lie  by  an  individual  for  an  injury  which  he  has  sustained  against 
any  other  individual  who  is  bound  to  lepair.     But  the  question  here  is, 

^  Arguments  omitted.  —  Ed. 


^«^'  <=v...-^>i«^ ^-r-^.o'^  0—^  ^»*=Vj»^  J^,>^>,.t>fei^ 


EUSSELL   V.    THE    MEN    OF   DEVON. 


531 


C>-v*v 


Whether  this  bod}"  of  men,  who  are  sued  in  the  present  action,  are  a 
cor[>oralion,  or  t/ua  a  corporation,  against  wlioni  siicli  an  action  can  be' 
maintained.  11'  it  be  reasonable  that  they  should  be  b}'  law  lial^le  to 
such  an  action,  recourse  must  be  had  to  the  Legislature  for  that  pur- 
pose. But  it  lias  been  said  that  this  action  ought  to  be  maintained  by 
borrowing  the  rules  of  analogy  from  the  statutes  of  hue  and  cry  :  but  1 
think  that  those  statutes  prove  the  ver}'  reverse.  The  reason  of  the 
statutejiLiL'iiiia«-was  this  ;  as  the  hundred  were  bound  to  keep  watch 
and  ward,  it  was  supposed  that  those  irregularities  which  led  to  robbery 
must  have  happened  by  their  neglect.  But  it  was  never  imagined  that 
the  hundred  could  have  been  compelled  to  make  satisfaction,^  till  the 
statute  gave  that  remedy ;  and  most  undoubtedly  no  such  action  could 
have  been  maintained  against  them  before  that  time.  Therefore  when 
the  case  called  for  a  remedy,  the  Legislature  interposed  ;  but  they  only 
gave  the  remedy  in  that  particular  case,  and  did  not  give  it  in  anj' 
other  case  in  which  the  neglect  of  the  hundred  had  produced  an  injury 
to  individuals.  And  when  they  gave  the  action,  thej-  virtuall}'  gave  the 
means  of  maintaining  that  action  ;  they  converted  the  hundred  into  a 
corporation  for  that  purpose  :  but  it  does  not  follow  that,  in  this  case 
where  the  Legislature  has  not  given  the  remedy,  this  action  can  be 
maintained.  And  even  if  we  could  exercise  a  Legislative  discretion  in 
this  case,  there  would  be  great  reason  for  not  giving  this  reraed}' ;  for 
the  argument  urged  by  the  defendant's  counsel,  that  all  those  who  be- 
come inhal)itants  of  the  count}",  after  the  injuiy  sustained  and  before 
judgment,  would  be  liable  to  contribute  their  proportion,  is  entitled  to 
great  weight.  It  is  true  indeed  that  the  inconvenience  does  happen  in 
the  case  of  indictments  ;  but  that  is  onh'  because  it  is  sanctioned  by 
common  law,  the  main  pillar  of  w^hich,  as  Lord  Coke  says,  is  unbroken 
usage.  Among  the  several  qualities  which  belong  to  corporations,  one 
is,  that  they  ma}"  sue  and  be  sued  ;  that  puts  it  then  in  contradistinction  L^ 
to  other  persons.  I  do  not  say  that  the  inhabitants  of  a  county  or  hun- 
dred may  not  be  incorporated  to  some  purposes  ;  as  if  the  king  were  to 
grant  lands  to  them,  rendering  rent,  like  the  grant  to  the  good  men  of 
the  town  of  Idinr/ton.^  But  where  an  action  is  brought  against  a 
corporation  for  damages,  those  damages  are  not  to  be  recovered  against 
the  corporators  in  their  individual  capacity,  but  out  of  their  corporate 
estate  :  but  if  the  county  is  to  be  considered  as  a  corporation,  there  is* 
no  corporation  fund  out  of  which  satisfaction  is  to  be  made.  Therefore 
I  think  that  this  experiment  ought  not  to  be  encouraged  ;  there  is  no 
law  or  reason  for  supporting  the  action  ;  and  there  is  a  precedent  against 
it  in  Brooke :  though  even  without  that  authority  I  should  be  of  opinion 
that  this  action  cannot  be  maintained. 

AsHHURST,  J.     It  is  a  strong  presumption  that  that  which  never  has  i 
been  done  cannot  by  law  be  done  at  all.     And  it  is  admitted  tlvat  no 
such  action  as  the  present  has  ever  been  brought,  though  the  occasion 


■W- 


jU^OJU 


»''Vv^-t*'»i^ 


i 


wO^^'k-ttV^'X 


to 


1   Vide  ante,  1  vol.  71.     2  Wils.  92,  3. 


2  Di/er,  100. 


532  ANTHONY   V     ADAMS. 

^i^^„-,   ,  must  have  frequently  happened.     But  it  has  been  said  tliat  there  is 

^^"^  ^  I  a  principle  of  law  on  which  this  action  may  be  maintained,  namely, 

';  that  where  an  individual  sustains  an  injury  by  the  neglect  or  default  of 

I  another,  the  law  gives  him  a  remedy.     But  there  is  another  general 

principle  of  law  which  is  more  applicable  to  this  case,  that  it  is  better 

that  an  individual  should  sustain  an  injur}-  than  that  the  public  should 

,  sutt'er  an  inconvenience.     Now  if  this  action  could  be  sustained,  the 

\\  y.^it^r^l  public  would  suffer  a  great  inconvenience  ;   for  if  damages  are  recover- 

,..»       I  able  against  the  county,  at  all  events  thej'  must  be  levied  on  one  or  two 

i  individuals,  who  have  no  means  whatever  of  reimbursing  themselves  ; 

[  for  if  they  were  to  bring  separate  actions  against  each  individual  of  the 

county  for  his  proportion,  it  is  better  that  the  plaintiff  should  be  without 

remedy.     However  there  is  no  foundation  on  which  this  action  can  be 

supported  ;  and  if  it  had  been  intended,  the  Legislature  would  have 

interfered  and  given  a  remed}',  as  they  did  in  the  case  of  hue  and  cr}*. 

Thus  this  case  stands  on  principle  :    but  I  think  the  case  cited  from 

JiroJce's  Abridgement  is  a  direct  authority  to  shew  that  no  such  action 

can  be  maintained  ;  and  the  reason  of  that  case  is  a  good  one,  namely, 

because  the  action  must  be  brought  against  the  public. 

BuLLER,  J.,  and  Grose,  J.,  assented. 

Judgment  for  the  defendants. 


1840.     \  Met.  {Mass.) 'IM.  ""^^V^    -^^  ^^»A 


ANTHONY  V.   ADAMS.       <a^ 


Shaw,  C.  J.     This  is  an  action  on  the  case  to  recover  damages,  for   /j, 
injuries  to  the  plaintiff's  lands  by  flowing,  caused  by  the  erection  of  an     ^ 
embankment  by  the  agents  of  the  defendants.     It  appears  by  the  case  -ijiv* 
that  a  highway  was  laid  out,  through  the  town  of  Adams,  and  that  it  ^  vV 
crossed  the  Hoosic  river,  where  it  divided  into  two  branches,  and  in     M^ 
such  a  manner,  if  it  passed  in  a  direct  line,  as  to  render  two  bridges      ^-t* 
necessary.     To  avoid  this  necessity,  an  embankment  was  made  across 
one  of  these  branches,  and  a  cut  made  to  turn  the  whole  of  the  water 
into  the  other,  and  thus  cause  it  to  pass  through  one  bridge  only.    This 
embankment  was  erected  at  a  distance  of  eight  or  ten  rods  above  the 
road,  and  on  land  not  of  the  plaintiff's,  but  above  his  land ;   and  the 
gravamen  of  the  complaint  is,  that  by  the  erection  of  this  embankment, 
ancl'T)y~clianging  the  direction  of  the  watercourse  from  its  natural  bed, 
the  plaintiff's  lands  were  flooded  and  injured. 


r.  ■ 


OsJ-' 


'  r^vJ^A.  4^  C^Ju^  ^<r»w>.  Q-u 


ANTHONY  V.   ADAMS. 


533 


f 


One  question  fliscussed  was,  whether  an  action  sounding  in  tort 
would  lie  against  a  municipal  cori)oration.  We  can  have  no  doubt, 
that  an  action  upon  the  case  will  lie  against  munici[)al  corporations, 
when~  such  corporations  are  in  tlie  execution  of  powers  conffiic d  on  \  ^ \i 
fllem,  or  ia  the  uerforiuauce  of  duties  required  of  them  hv  law,  and 
tlTeli' officers,  servants  and  agents,  shall  perform  their  acts  sf)  carclcsslv, 
tiiiskilfirtlvor  impro[)erly,  as  to  ""cause  damage  to  others.  This  falls 
wTEhin  the  very  general  principle,  that  the  superior  or  employer  shall  be 
answerable  civiliter  for  the  mismanagement  and  negligence  of  the 
agent  employed  by  him,  bj'  which  another  is  damnified.  Sutton  v. 
Clarke,  6  Taunt.  29.  And  although  such  action  sounds  in  tort,  to 
mark  the  distinction  between  this  and  an  action  upon  contract ;  yai  the 
true  view  of  considering  it,  is  that  of  a  legal  liabilitv  to  indemnifv 
another  against  negligence  of  one  for  whom  the  law  holds  him  respon- 
sible. It  implies  no  wilful  act,  or  intended  wrong,  and,  therefore, 
requiring  no  vote  or  corporate  act  to  create  the  liability,  it  may  as  well 
lie  against  a  corporation  as  an  individual  person.  We  think  it  stands 
on  the  same  footing  on  which  it  is  now  held,  both  in  this  country  and 
in  England,  contrary  to  the  ancient  notions  on  that  subject,  that  cor- 
porations may  be  liable  on  implied  promises  raised  b}'  law  from  their  \  Yy^ 
legal  liabilities.     Gray  v.  Portland  BaiiJc,   3  Mass.   364.     Bank  of  ^\ 

Columbia  v.   Patterson,   7   Cranch,   299.     Clark   v.  Mayor,    d'c.   of 
TVashi)i(/t07i,  12  Wheat.  40.     Beverley  v.  Lincoln   Gas  Light  Band 
Coke    Co.,  6  Adolph.  &  Ellis,  829.     But  where  individuals,  although 
professing  to  act  under  color  of  authority  from  municipal  corporations, 
ao  acts  which  are  injurious  to  others,  if  the  objects  and  purposes  which 
they  propose  to  accomplish,  are  not  within  the  scope  of  the  corporate      v\jd'^ 
powers  of  towns,    and   not  done  in  the  execution  of   any  corporate 
duty  imposed  upon  the  town  by  law,  the  town  is  not  liable   for  the 
damages  occasioned  b\'  such  acts.     Were  it  otherwise,  towns  might  be 
rendered  responsible  upon  implied  liabilities,  in  cases  where  the}'  could 
not  bind  themselves,  as  a  corporation,  bj-  an  express  vote  of  the  inhab- 
itants.    For,  it  is  now  well  settled  that  a  town,  in  its  corporate  capa- 
cit}',  will  not  be  bound,  even  by  the  express  vote  of  a  majority,  to  the 
performance  of  contracts,  or  other  legal  duties  not  coming  within  thel 
scope  of  the  objects  and  purposes  for  which   the}'  are  incorporated. 
Stetson  v.  Kempton,  13  Mass.  272.     Norton  v.  Mansfield,  16  Mass. 
48.     Parsons  v.  Goshen^  11  Pick.  396. 

Looking  at  the  declaration  in  the  present  case,  it  is  not  shown  thatl  }v«  C^-ft•^ 
the  town  was  under  an}'  obligation,  in  its  corporate  capacity,  to  erect  1  'Cwk-*  -H' 
and  build  this  highway,  or  that  the  dam  complained  of  was  a  part  of  |  iDsxv^*' 
the  highway,  or  that  the  damage  complained  of  resulted  from  the  neg- 
ligence of  the  agents  and  officers  of  the  town,  in  the  performance  of 
any  corporate  duty.  The  court  are,  therefore,  of  opinion  that  tha 
action  cannot  be  maintained.  ^-^i^j^^sTO , 

9-r,.J:    .>.    .,  .       v^      5'^5^<.^^3f/^C)) 


534 


HILL   V.   BOSTON. 
HILL   V.  BOSTON. 

1877.     122  Mass.  344. 


S^A 


istoi 


Gray,  C.  J.^  This  is  an  action  of  tort  against  the  city  of  B^ 
The  plaintiff,  who  sues  by  his  next  friend,  offered  to  prove  at  the  trial 
that  in  May,  1874,  he  was  of  the  age  of  eight  years,  and  was  a  pupil  at- 
tending a  school  in  Boston,  which  was  one  of  the  public  schools  which 
the  city  was  bound  by  law  to  keep  and  maintain ;  that  this  school  was 
on  the  third  floor  of  the  building  in  which  it  was  kept;  that  the  stair- 
case was  winding,  and  the  railing  thereof  so  low  as  to  be  dangerous ; 
that  the  city  negligently  constructed  and  maintained  the  building,  and 
authorized  the  public  schools  to  be  kept  therein  ;  and  that  the  plain- 
tiff, while  going  to  school,  and  being  in  the  exercise  of  due  care,  fell 
over  the  railing  of  the  second  flight  of  stairs,  and  was  seriously 
injured. 


We  had  supposed  it  to  be  well  settled  in  this  Commonwealth  thatjio 
private  action,  unless  authorized  by  express  statute,  can  be  maintained 
against  a  city  for  the  neglect  of  a  public  duty  imposed  upon  it  by  la\v_ 
for  the  benefit  of  the  public,  and  from  the  performance  of  which  th;^ 
TJorporation  receives  no  profit  or  advantage.  But,  it  having  been  sug- 
gested at  the  argument  that  the  recent  opinions  of  the  Supreme  Court 
of  the  United  States  tended  to  a  different  result,  the  respect  due  to 
that  high  court,  even  in  matters  in  which  we  are  not  bound  by  its  deci- 
sions, has  led  us  to  reexamine  the  foundations  upon  which  our  law  rests, 
and,  in  stating  our  conclusion,  to  make  fuller  reference  to  the  au- 
thorities than  might  under  other  circumstances  have  been  thought 
expedient. 

The  question  has  most  commonly  arisen  in  actions  for  defects  in  high- 
ways and  bridges,  by  reason  of  which  persons  passing  over  them  have 
received  injuries. 


N^*^  -  Although  the  English  books  contain  numerous  cases  of  indictments 
or  informations  for  neglect  to  repair  highways  and  bridges,  no  instance 
has  been  referred  to,  in  the  frequent  discussions  of  the  subject  in 
England  and  in  this  country,  in  which  an  English  court  has  sustained 
a  private  action  against  a  public  or  municipal  corporation  or  quasi 
corporation  for  such  neglect,  except  under  a  statute  expressly  or  by 
necessary  implication  giving  such  a  remedy. 


h. 


The  towns  and  cities  of  Massachusetts  have  been  established  by  the 
Legislature  for  public  purposes  and  the  administration  of  local  affairs, 
and  embrace  all  persons  residing  within  their  respective  limits. 

1  Part  of  the  opinion  omitted.  —  Ed. 


o3fcu. 


.^*- 


-c/      kC-^<L<y 


0 


.  ^" 


HILL   V.   BOSTON.  535 

At  the  first  settlement  of  the  Colony,  towns  consisted  of  clusters  of 
inhabitants  dwelling  near  each  other,  which,  by  the  effect  of  legislative 
acts,  designating  them  by  name,  and  conferring  upon  them  the  powers 
of  managing  their  own  prudential  affairs,  electing  representatives  and 
town  otiicers,  making  by-laws,  and  disposing,  subject  to  the  paramount 
control  of  the  Legislature,  of  unoccupied  lands  within  their  territory, 
became  in  effect  municipal  or  quasi  corporations,  without  any  formal  act 
of  incorporation.  Porter  v.  Snllican^  7  Gray,  411,  444.  Common- 
xveolth  V.  Roxburu,  9  Gray,  451,  485.  Wei<t  Roxhury  v.  Sfodi/ard, 
7  Allen,  15.S,  169.  Lynn  v.  Nahant,  113  Mass.  433,  448.  By  some 
pf  the  earliest  acts  passed  under  the  Province  Charter,  the  boundaries 
of  all  existing  towns  were  confirmed,  and  towns  were  empowered  to 
assess  and  levy  taxes  for  the  maintenance  and  support  of  schools  and 
of  the  poor,  and  the  defraying  of  other  necessary  charges  arising 
within  the  towns,  and  were  declared  to  be  copable  of  suing  and  being 
sued.  Prov.  Sts.  1692-93  (4  W.  &  M.)  c.  28;  1694-95  (G  W.  &  M.) 
c.  13;  1  Prov.  Laws  (State  ed.)  64,  66,  182;  Anc.  Chart.  247,  249, 
279.  Soon  after  the  adoption  of  the  Constitution  of  the  Common- 
wealth, it  was  for  the  first  time  expressly  enacted  that  "  the  inhab- 
itants of  every  town  within  this  government  are  hereby  declared  to  be 
a  body  politic  and  corporate."  St.  1785,  c.  77,  §  8.  Rev.  Sts.  c.  15, 
§  8.  Gen.  Sts.  c.  18,  §  1.  And  it  has  always  been  recognized  by  tliis 
court,  even  before  it  was  declared  by  statute,  that  towns,  as  well  as 
counties,  territorial  parishes  and  school  districts,  by  virtue  of  their 
existence  as  quasi  corporations,  were  capable  of  holding  property  and  J!:222^ 
making  contracts  for  the  purposes  for  which  they  were  established.  (^AfVsn  t^ 
Windham  v.  Portland,  4  Mass.  384,  389.  Ramford  School  District  v.  [^  '  ^  ^ 
Wood,  13  Mass.  193,  198.  First  Parish  in  Sutton  v.  Cole,  3  Pick. 
232,  240.  Rev.  Sts.  c.  15,  §  11,  and  Commissioners'  note.  Gen.  Sts. 
c.  18,  §  9. 

-^  By  the  common  law  of  Massachusetts  and  of  other  New  England 
States,  derived  from  immemorial  usage,  the  estate  of  any  inhabitant  of 
a  county,  town,  territorial  parish  or  school  district,  is  liable  to  be 
taken  on  execution  on  a  judgment  against  the  corporation.  5  Dane 
Ab.  158.  Haivkes  v.  Kennebeck,  7  INIass.  461,  463.  Chase  v.  Merri- 
mack Bank,  19  Pick.  564,  569.  Gaskill  v.  Dudley,  6  Met.  546.  Beards- 
ley  V.  Smith,  16  Conn.  368.  In  this  Commonwealth,  payment  of  such 
a  judgment  has  never  been  compelled  by  mandamus  against  the  cor- 
poration, as  in  other  parts  of  the  United  States.  Dillon  on  Mun. 
Corp.  (2d  ed.)  §§  446,  686.  Suj^ervisors  v.  United  States,  4  Wall. 
435. 

From  a  very  early  period,  towns  have  been,  by  general  laws,  re- 1 '^  t-v^v^v^ 
quired  to  keep  highways  and  bridges  in  repair,  and  made  liable  to  I  L-^ /U^^ 
actions  for  defects  therein   by  persons  sustaining  special  damage  in  |  jVl-y, 
their  persons  or  property.     IMass,  Col.  St.   1648,  2  Mass.  Col.  Rec.  f 
229;  Mass.  Col.  Sts.  (ed.  1672)  12.     Prov.  St.  1693-94  (5  W.  &  JM.)  . 

0.  6,  §§  1,  6;   1  Prov.  Laws  (State  ed.)  136,  137.    Anc.  Chart.  55,  56  ^ 

IWm.-,    tA--U^  v^rCs  ♦-ti-Hf  ..— J!(jl. 


)r^-r^ 


536 


HILL  V.   BOSTOX. 


-csa^ 


267,  269.  St.  1786,  c.  81,  §§  1,  7.  Rev.  Sts.  c.  25,  §§  1,  22.  St. 
1850,  c.  5.  Gen.  Sts.  c.  44,  §§  1,  22.  The  case  of  Horton  v.  Ips- 
wich, 12  Cush.  488,  cited  for  the  plaintiff,  was  an  action  upon  such 
a  statute. 

In  a  case  in  this  court  in  1810,  in  which  an  action  was  maintained 
against  a  corporation  chartered  to  maintain  a  canal  and  to  take  tolls 
thereon,  for  suffering  its  canal  to  be  out  of  repair,  whereby  the  plain- 
tiff's raft  stuck  fast  and  was  injured,  Parsons,  C.  J.,  said,  that  although 
quad  corporations,  such  as  counties  and  hundreds  in  England,  and 
counties  and  towns  in  this  state,  were  liable  to  information  or  indict- 
ment for  a  neglect  of  a  public  duty  imposed  on  them  by  law.  yet  it 
was  settled  in  the  case  of  Russell  v.  Men  of  Devon,  2  T.  R.  667,  that 
no  private  action  could  be  maintained  against  them  for  a  breach  of  their 
corporate  duty,  unless  such  action  was  given  by  statute.  Riddle  v. 
Proprietors  of  Locks  Sf  Canals,  7  Mass.  169,  187. 

Two  3'ears  later,  the  question  was  directly  presented  for  judgment, 
in  an  action  at  common  law  against  a  town,  for  a  personal  injury 
caused  by  a  defect  in  a  highway,  of  which  the  town  had  not  had  the 
notice  required  to  charge  it  under  the  statute.  It  was  argued  for  the 
plaintiff,  that  none  of  the  objections  which  prevailed  in  Russell  v. 
3Ien  of  Devon  applied,  because  here  the  town  was  a  corporation  created 
by~statute,  capable  of  suing  and  being  sued,  was  bound  by  statute 
to  keep  the  public  highways  in  repair,  was  called  upon  to  answer  only 
for  its  own  default,  and  had  a  treasury  out  of  which  judgments  recov- 
ered against  it  might  be  satisfied ;  and  that  the  objection  that  a  multi- 
plicity of  actions  would  be  the  consequence  of  levying  the  execution  on 
one  or  more  inhabitants  of  the  town  could  have  no  effect,  because 
it  would  equally  apply  to  every  action  against  a  town  or  parish,  and  yet 
such  actions  were  every  day  brought  and  supported.  But  the  court 
arrested  judgment,  saying:  "It  is  well  settled  that  the  common  law 
gives  no  such  action.  Corporations  created  for  their  own  benefit 
stand  on  the  same  ground,  in  this  respect,  as  individuals.  Bnt  quasi 
corporations,  created  by  the  Legislature  for  purposes  of  public  policy, 
are  subject,  by  the  common  law,  to  an  indictment  for  the  neglect  of, 
duties  enjoined  on  them  ;  but  are  not  liable  to  an  action  for  such  ueg.- 
lict,  unless  the  action  be  given  by  some  statute."  Mower  v.  Leicester^ 
T  Mass.  247,  250. 

Those  cases  have  ever  since  been  considered  as  having  established 
in  this  Commonwealth  the  general  doctinne  that  a  private  action  cannot 
be  maintained  against  a  town  or  other  quasi  corporation,  for  a  neglect  of 
corporate  duty,  unless  such  action  is  given  by  statute.  White  v.  Phil- 
lipston,  10  Met.  108,  110.  Saivt/er  \.  Northpld,  7  Cush.  490,  494. 
Bigeloio  v.  Randolph^  14  Gray,  541,  543.  And  they  have  been  ap- 
proved and  followed  throughout  New  England.  Adams  v.  Wiscasset 
Bank,  1  Greenl.  361,  364.  Reed  v.  Belfast,  20  Maine,  246,  248. 
Farmim  v.  Concord,  2  N.  H.  392.  Eastman  v.  Meredith,  36  IST.  H. 
284,  297-300.     Hyde  v.  Jamaica,  27  Vt.  443,  457.     State  v.  Burling- 


.TCl^^^TL'^- 


HILL   V.   BOSTON. 


537 


ton,  36  Vt.  521,  524.     CJddsei/  v.  Catiton,  17  Conn.  475,  478.     Ttajlor 
V.  Peckham,  8  R.  I.  349,  352. 


[VvN-\3« 


i 


In  this  Commonwealth,  an  act  of  the  Legislature  changing  a  town 
into  a  city  has  never  been  considered  as  enlarging  civil  remedies  for 
neglect  of  corporate  duty  ;  and  it  has  been  constantly  held  that  a  city,!  — -^ 

like  a  town,  is  not  liable  to  an  action  for  a  defect  in  a  highway,  except  /l^  *»a>/^ 
so  far  as  the  right  to  maintain  such  an  action  has  been  clearly  given  by  ,ljJ  ju^^*- 
statute.     Brady  v.  Lowell,  3  Cush.   121.     Harivood  v.  Loioell,  4  Cush.  ^/V^ 
310.   Hixon  V.  Lowell,  13  Gray,  59,  64.     Olii-ery.  Worcester^  102  Mass.       x''^^ 
489.     The  same  view  has  been  taken  in  other  New  England  States,  r 

and  in  New  Jersey,  Michigan  and  California.  Morgan  v.  Hallowell^ 
51  Maine,  375,  378.  Jones  v.  New  Haven,  34  Conn.  1,  13.  Ileiclson 
V.  New  Haren,  37  Conn.  475.  Praij  v.  Jersey  City,  3  Vroom,  394. 
Detroit  v.  Blackehy,  21  IMich.  84.    Winbigler  v.  Los  Angeles,  45  Cal.  36. 

Neither  the  act  which  originally  established  the  city  of  Boston,  St. 
1821,  c.  110,  nor  the  act  to  revise  the  city  charter,  St.   1854,  c.  448, 
contains  any  provision  as  to  the  duty  of  the  city  to  repair  highways, 
or  to  provide  school-houses.     Each  of  these  duties  depends  upon  gen- 
eral laws,  applicable  to  all  cities  and  towns  alike.     As  to  highways,  ^ 
the  duty  is  regulated  by  the  Gen.  Sts.  c.  44,  §§  1,  21,  22.     The  duty^ 
as  to  school-houses  is  governed  by  the  Gen.  Sts.  c.  38,  §  36,  which  en-  ' 
act  that  "  every  town,  not  divided  into  school-districts,  shall  provide  ' 
and  maintain  a  sufficient  number  of  school-houses,  properly  furnished 
and  conveniently  located,  for  the  accommodation  of  all  the  children 
therein  entitled  to  attend  the  public  schools."     This  enactment,  by 
virtue  of  c.  3,  §  7,  cl.  17,   includes  cities  as  well  as  towns.     The  only 
remedy  which  the  statutes  give  for  refusal  or  neglect  to  comply  with 
its  requisitions  is  by  indictment.     St.  1871,  c.  145. 

Assuming,  therefore,  that  the  form  of  the  staircases  of  school-houses 
is  not  left  exclusively  to  the  discretion  of  the  city,  and  that  the  negli- 
gence offered  to  be  proved  at  the  trial  might  be  a  cause  of  indictment,  it 
is  quite  clear  that,  according  to  the  statutes  and  decisions  in  this  Com- 
monwealth, it  affords  no  ground  of  private  action  against  the  city.  But 
it  may  be  convenient,  in  this  connection,  to  distinguish  some  of  the 
principal  cases  in  which  this  court  has  held  cities  liable  to  actions  of 
tort  by  individuals. 

If  a  city  or  town  negligently  constructs  or  maintains  the  bridges  or 
culverts  in  a  highway  across  a  navigable  river,  or  a  natural  water- 
course, so  as  to  cause  the  water  to  flow  back  upon  and  injure  the  land 
of  another,  it  is  liable  to  an  action  of  tort,  to  the  same  extent  that  any 
corporation  or  individual  would  be  liable  for  doing  similar  acts.  Ari' 
Ifiony  V.  Adams,  1  Met.  284,  285.  Lawrence  v.  Fairhat-en,  5  Gray, 
110.  Perry  V.  Worcester,  6  Gray,  544.  Parker  v.  Lowdl,  11  Gray, 
353.    ^Vlleeler  v.  Worcester,  10  Allen,  591.    So  if  a  city,  by  its  agents, 


A 


without  authority  of  law,  makes  or  empties  a  common  sewer  upon  the 
property  of  another  to  his  iujuiy,it  is  liable  to  him  in  an  action  of  tort. 


i^-* 


C-Or-a_<    i-^0^^"^    ►-«»-'•     ,\- 


•^  V 


;.*v^«/v»> 


MpA-t-v«J^    dt^^"-*^ 


l-ofc. 


538 


HILL   V.   BOSTON. 


I 


Propi'ietors  of  Locks  &  Canals  v.  Loivell^  7  Gray,  223.  Hihlreth  v. 
Lowell,  11  Gray,  345.  Haskell  v.  JVeio  Bedford,  108  Mass.  208.  But 
in  such  cases,  the  cause  of  action  is  not  neglect  in  the  performance  of 
a  corporate  duty,  rendering  a  public  work  unfit  for  the  purposes  for 
which  it  is  intended,  but  it  is  the  doing  of  a  wrongful  act,  causing  a 
direct  injury  to  the  property  of  another,  outside  of  the  limits  of  the 
public  work. 

As  to  common  sewers,  built  by  municipal  authorities  under  a  power 
conferred  by  law,  it  has  been  held,  upon  great  consideration,  that, 
as  the  power  of  determining  where  the  sewers  shall  be  made  involves 
the  exercise  of  a  large  and  quasi  judicial  discretion,  depending  upon 
considerations  affecting  tlie  public  health  and  general  convenience, 
therefore  no  action  lies  for  a  defect  or  want  of  sulficiencyjn  the  plan 
or  system  of  draiuageliclopted" within  the  authority  so  c<>iif(_Mi\M] ;  luit 
that,  as  til e  sewer  acts  were  not  made  applicable  to  any  city,  unless 
accepted  by  it,  and,  when  accepted,  and  the  sewers  built,  vested  in  the 
city  the  property  in  the  sewers,  and  authorized  it  to  assess  the  expense 
of  construction  upon  the  lands  immediately  benefited,  and  as  the  duty 
pf  constructing  the  sewers  and  keeping  them  in  repair  was  merely 
ministerial,  therefore,  for  neglect  in  the  construction  or  repair  of  any 
particular  sewer,  whereby  private  property  was  injured,  an  action  might 
be  maintained  against  the  city.  Gen.  Sts.  c.  48.  Sts.  1841,  c.  115; 
1857,  c.  225;  1869,  c.  111.  Cldld  v.  Boston,  4  Allen,  41.  Emery  v. 
Lowell,  104  Mass.  13.     Merrifield  \.  Worcester,  110  Mass.  216. 

The  only  other  cases  in  Massachusetts,  which  need  be  mentioned, 
are  those  in  which  a  city,  holding  and  dealing  with  property  as  its  own, 
not  in  the  discharge  of  a  public  duty,  nor  for  the  direct  and  immediate 
use  of  the  public,  but  for  its  own  benefit,  by  receiving  rents  or  other- 
wise, in  the  same  way  as  a  private  owner  might,  has  been  held  liable, 
to  the  same  extent  as  he  would  be,  for  negligence  in  the  management 
or  use  of  such  property  to  the  injury  of  others.  Tliayer  v.  Boston,  19 
IMck.  511,  Oliver  v.  Worcester,  102  Mass.  489.  The  distinction 
between  acts  done  by  a  city  in  discharge  of  a  public^cluty,  and  acts" 
done  foFwliat  has  been  called,  by  way  of  distinction,  its  private  ad- 
vanla^" "or" emolument^  has  been  clearly  pointed  out  by  two  eminent 
judges,'while  sitting  in  the  supreme  courts  of  their  respective  states, 
who  have  since  acquired  a  wider  reputation  in  the  Supreme  Court 
of  the  Union,  and  by  the  present  Chief  Justice  of  England.  Nelson, 
€.  J.,  in  Bailey  v.  Mayor,  &c.  of  New  York,  3  Hill,  531,  539.  Strong, 
J.,  in  Western  Saving  Fund  Society  v.  Philadelphia,  31  Penn.  St. 
185,  189.  Cockburn,  C.  J.,  in  Scott  v.  Mayor,  &c.  of  Manchester,  2  H. 
&  N.  204,  210. 


The  English  authorities  uniformly  hold  that  a  county,  town  or  parish 
being  liable  at  common  law  to  indictment  only,  and  not  to  action, 
for  neglect  to  repair  a  highway,  therefore,  when  the  duty  to  repair, 
which  before  rested  upon  the  county,  town  or  parish  is  transferred 


in 


•T'-r.^ 


A-,.,    ,  \)^_-«i''V<>p  .. 


C*r^ 


'  -^       /  l.-^<,<^„4A^ 


HILL   V.   BOSTON. 


539 


by  statute  to  a  public  officer,  or  to  a  municipal  corporation  or  a  board 
incorporated  for  tlie  purpose,  such  ofllcer  or  corporation  is  no  more 
liable  to  private  actiou  tiian  the  county,  town  or  parish  previously  was, 
unless  the  statute  transferring  the  duty  clearly  manifests  an  intention 
in  the  Legislature  to  impose  the  additional  liability. 

The  result  of  the  English  authorities  is,  that  when  a  duty  is  imposed 
upon  a  municipal  corporation  for  tlie  benefit  of  the  public,  without  any 
consideration  or  emolument  received  by  the  corporation,  it  is  only 
where  the  duty  is  a  new  one,  and  is  such  as  is  ordinarily  performed 
by  trading  corporations,  that  an  intention  to  give  a  private  action  for 
a  neglect  in  its  performance  is  to  be  presumed. 


^j^' 


The  result  of  this  review  of  the  American  cases  may  be  summed  up 
as  follows:  There  is  no  case,  in  which  the  ne<:lcct  of  a  duty,  imposed 
by  general  law~u]X)n  all  cities  and  towns  alike,  has  been  held  to  sustain 
an  actiou "l)y  person  injured  thereby  against  a  city,  when  it  would  not 
agatiTst  aTowTrr^'The  only  decisions  of  the  state  courts,  in  which  the 
meregrairt'  by  the  Legislature  of  a  city  charter,  authorizing  and  requir- 
ing the  city  to  perform  certain  duties,  has  been  held  sufficient  to  render 
the  city  liable  to  a  private  action  for  neglect  in  their  performance,  when 
a  towm  would  not  be  so  liable,  are  in  New  York  since  1850,  and  in  Illi- 
nois. The  cases  in  the  Supreme  Court  of  the  United  States,  in  which 
private  actions  have  been  sustained  against  a  city  for  neglect  of  a 
duty  imposed  upon  it  by  law,  are  of  two  classes:  1st.  Those  which 
arose  under  the  peculiar  terms  of  special  charters,  in  the  District  of 
Columbia,  as  in  Weiglitman  v.  Washiiif/ton  and  Barnes  v.  District  of 
Columbia,  or  in  a  territory  of  the  United  States,  as  in  Nebraska  City  v. 
Campbell.  2d.  Those  which,  as  in  Ma>jor^  &c.  of  Nem  York  v.  Sheffield, 
and  Chicago  City  v.  Bobbins,  arose  in  New  York  or  in  Illinois,  and  in 
which  the  general  liability  of  the  city  was  not  denied  or  even  discussed, 
and  apparently  could  not  have  been,  consistently  with  the  rule  by 
which  the  Supreme  Court  of  the  United  States,  upon  questions  of  the 
construction  and  effect  of  the  Constitution  and  statutes  of  a  state,  fol- 
lows the  latest  decisions  of  the  highest  court  of  that  state,  even  if 
like  words  have  been  differently  construed  in  other  states.  Elmen- 
dorfy.  Taylor,  10  Wheat.  152,  159.  C/iristy  v.  Fridgeon,  4  Wall. 
196.  Riclimond  v.  Smith,  15  Wall.  429.  Tioga  Railroad  v.  Bloss- 
hurg  &  Corning  Railroad,  20  Wall.  137.  State  Railroad  Tax  Cases, 
92  U.  S.  575,  615.  In  the  absence  of  such  binding  decisions,  we  find 
it  difficult  to  reconcile  the  view,  that  the  mere  acceptance  of  a  mu- 
nicipal charter  is  to  be  considered  as  conferring  such  a  benefit  upon  the 
corporation  as  will  render  it  liable  to  private  action  for  neglect  of  the 
duties  thereby  imposed  upon  it,  with  the  doctrine  that  the  purpose  of 
the  creation  of  municipal  corporations  by  the  state  is  to  exercise  a  part 
of  its  powers  of  government  —  a  doctrine  universally  recognized,  and 


540  WALCOTT   V.    INHABITANTS    OF    SWAMPSCOTT. 

which  has  nowhere  been  more  strongly  asserted  than  by  the  Supreme 
Court  of  the  United  States,  in  the  opinions  delivered  by  Mr.  Justice 
Hunt,  in  United  States  v.  Railroad  Co.  17  Wall.  322,  329,  and  by  Mr. 
Justice  Clifford,  in  Laramie  v.  xilhany,  92  U.  S.  307,  308. 

But,  however,  it  may  be  where  the  duty  in  question  is  imposed  by 
the  charter  itself,  the  examination  of  the  authorities  confirms  us  in  the 
conclusion  that_a_duty,  which  is  imposed  upon  an  incorporated  city,  not 
by  the  terius  of  its  charter,  nor  for  the  profit  of  the  corporation,  pe- 
cuniarily or  otherwise,  but  upon  the  city  as  the  represeutative  aud 
agent  of  the  public,  and  for  the  public  benefit,  and  by  a  general  law 
applicable  to  all  cities  and  towns  in  the  Commonwealth,  and  a  breach 
of  which  in  the  case  of  a  town  would  give  no  right  of  private  action, 
is  a  duty  owing  to  the  public  alone,  and  a  breach  thereof  by  a  city,  as 
by  a  town,  is  to  be  redressed  by  prosecution  in  behalf  of  the  public, ' 
and  will  not  support  an  action  by  an  individual,  even  if  he  sustains 
special  damage  thereby ;  and,  according  to  the  terms  of  the  report, 
there  must  be 

Judgment  for  the  defendant. 

WALCOTT  V.   INHABITANTS   OF   SWAMPSCOTT. ^^M^^ 

1861.     1  Allen  {Massachusetts),  101.  ^-sJl     ^^"^^ 

Tort  for  an  injury  received  upon  a  highway  from  a  collision  witn  a    r^ 
cart  driven  by  one  O'Grad}',  a  laborer  employed  by  a  highway  sun-gyor   'u 
of  Swampscott  to  aid    in  repairing  a   highway.     At  the  trial  in  the  i^J 
superior  court,  upon  the  facts  proved,  the  defendants  requested  the  ,  -v 
court  to  rule  that  they  were  not  liable  for  the  acts  of  O'Grady ;  but  ^V 
WilMnsofiy  J.    instructed  the  jury  that  if  O'Grady  was  driving  the   <  / 
horse  and  cart  with  which  the  plaintiff  came  in  collision,  with  a  load  of 
gravel  for  the  repair  of  the  highway,  and  was  employed  so  to  do  by  the  '^ 
surveyor  of  the  town,  and  the  collision  was  caused  solely  by  O'Grady's  '^^ 
want  of  care  in  driving  the  horse  and  cart,  the  defendants  were  liable.  "-^  ^ 
A  verdict  was   found   for  the  plaintiff,   and  the  defendants  alleged     w, 
exceptions.  (n 

J.  A.  Gillis,  for  the  defendants.  * 

J.  W.  Perry,  {A.  B.  Almon  with  him,)  for  the  plaintiff.  ^ 

BiGELow,  C.  J.     We  cannot  distinguish  this  case  from  Hafford  v.      U 
City  of  New  Bedford,  16  Gray,  297.     It  was  there  held,  that  where      <t 
a  municipal  corporation  elects  or  appoints  an  officer,  in  obedience  to     / 
an  act  of  the  legislature,  to  perform  a  public  service,  in  which  tlie  city    ^ 
or   town   has    no    particular    interest,    and   from  which  it   derives   no     ^ 
I  special  benefit  or  advantage  in  its  corporate  capacity,  but  which  it  is 
bound  to  see  performed  in  pursuance  of  a  dut}-  imposed  b^^  law  for  the 
,^^*^;l.w/^^^- general  welfare  of  its  inliabitants  or   of  the  community,  such  officer 
^'  '  -  '         cannot  be  regarded  as  the  servant  or  agent  of  the  town,  for  whose 
^  ■.       i  negligence  or  want  of  skill  in  the  performance  of  his  duties  a  town  or 


WALCOTT   V.    INHABITANTS    OF   SWAMPSCOTT. 


K. 


41 


city  can  he  held  liable.     To  the  acts  and  conduct  of  an  officer  so 
appointed  or  elected  the  maxim  resjyondeat  su2)crior  is  not  applicable. 

This  is  especially  true  in  the  case  of  surveyors  of  highways.     They 
are  elected  Jn-  towns  and  ciUes,  not  because  they  are  to  render  services 
for  tfieir  peculiar  benefit  or  advantage,  but  because  this  mode  of  ap- 
pointment has  been  deemed  expedient  l)y  the  legislature  in  the  distribu- 
tion of  public  duties  and  i)urdens  for  tlie  ptni)oses  of  government,  and 
for  the  good  order  and   welfare  of  the  community.     They  are,  strictly 
speaking,  public  officers,  clothed  with  certain  powers  and  duties  which 
are  prescribed  and  regulated  by  statute.     Towns  cannot  direct  or  con- 
trol them  in  the  performance  of  these  duties  ;  they  cannot  remove  them 
from  office  during  the  term  for  which  they  are  chosen  ;  they  are  not 
amenable  to  towns  for  the  manner  in  which  they  discharge  the  trust 
reposed  in  them  b}-  law  ;  nor  can  towns  exercise  any  right  of  selecting 
the  servants  or  agents  b\-  whom  the}'  perform  the  work  of  repairing  the 
highways.     In  the  discharge  of  these  general  duties  they  are  wholly 
independent  of  towns,  and  can  in  no  sense  be  considered  their  servants 
or  agents.     It  is  only  in  certain  specified  cases,  and  under  carefullv 
guarded  limitations,  that  the}'  can  bind  towns  by  their  acts.     Rev.  Sts 
c.  25,  §§  1.3,  15.     Gen.  Sts.  c.  44,  §§11,  13,  14.     Sikes  v.  Hatfield,  13 
Gra}',  347.     It  was  decided  by  this  court,  in  White  v.  Phillijyston,  10 
Met.  108,  that  the  common  rule  of  law,  which  makes  the  agent  or  ser- 
vant liable  over  to  ins  employer  or  master  for  damages  sustained  by 
him  in  consequence  of  the  neglect  of  such  agent  or  servant,  does  not 
apph'  to  the  acts  of  a  surveyor  of  highways.     The  court  there  say  he  is 
not  treated  by  the  statute  as  a  mere  agent  or  servant  whom  the  town 
has  employed,  and  to  whom  he  is  responsible  for  neglect  of  duty.     No 
one  would  pretend  that  a  town  would  be  liable  for  damages  occasioned 
by  the  negligence  or  want  of  care  of  one  of  its  inhai)itants  while  en- 
gaged in  working  out  the  amount  of  his  highway  tax  by  making  repairs 
on  the  roads.     And  3'et  we  cannot  see  wh}'  such  liability  would  not 
exist  if  the  surveyor  of  highways,  or  the  persons  employed  by  him,  can 
render  the  town  chargeable  for  acts  of  carelessness  while  employed  in 
performing  similar  labor.     The  truth  is,  that  in  neither  case  does  the 
relation  of  principal  and  agent  or  master  and  servant  exist. 

In  the  case  at  bar,  the  injury  sustained  by  the  plaiutifl'  was  not 
occasioned  bj'  any  negligence  or  want  of  care  on  the  part  of  the  sur- 
veyor himself,  but  In*  the  carelessness  of  a  person  employed  b}'  him  to 
make  repairs  on  the  road.  To  sustain  this  action,  therefore,  it  would 
be  necessary  to  hold  that  the  defendants  were  liable  not  onl\'  for  the 
acts  of  a  public  officer,  but  also  for  those  of  a  person  in  his  employment 
whom  they  did  not  select,  and  in  whose  emploN'ment  to  act  in  their 
behalf  they  could  have  no  voice.  This  would  be  a  clear  violation  of 
the  principle,  that  the  right  of  selection  lies  at  the  foundation  of  the 
liabilitv  of  a  master  for  the  acts  of  his  servant.  The  law  does  not  hold  1 
parties  responsible  for  the  negligence  or  want  of  skill  of  those  over 
whose  selection  and  employment  the}'  could  exercise  no  direction  or  ' 
control.  Exceptions  sustained. 


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542  MURRAY   V.    OMAHA. 


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MURRAT  V.  OMAHA.     ^^        ^    .      -« 

1902.     66  Neo.  279.  ^^^^^'  ''^  ^n  J 

Pound,  C.  This  is  an  action  against  the  city  of  Omaha  and  the  ^^ 
members  of  the  board,  for  the  inspection  of  buildings,  appointed  under  "^ 
its  charter,  to  recover  for  the  alleged  wi^ngfiir tearing  down  of  certain  /lA*^ 
frame  buildings  condemned  by  the  board  as  nuisances  under  provisions'^  i 
of  a  municipal  ordinance.     The  principal  contest  was  as  to  the  liability  p 

of  the  city,  and  as  no  other  question  is  argued  in  the  plaintiff's  briefs,    '^ 
we  are  concerned  with  that  aspect  of  the  case  only.     Section  36  of  the     /^ 
act  of  1S93  ^  for  the  government  of  cities  of  the  metropolitan  class,    j. 
which  was  in  force  at  the  time  of  the  occurrence  out  of  which  this  case       ^ 
arose,  gave  the  mayor  and  council  power  to  provide  for  fire-limits ;  to       ^ 
provide    for   the   removal   of   buildings  erected  contrary  to  fire-limit     . 
regulations  ;  to  provide  that  buildings  within  such  limits,   which  had      ^ 
become  dangerous  by  reason  of  decay,  be  removed,  and  to  assess  the 
cost  of  removal  upon  the  land,  or  to  collect  it  from  the  owner  person- 
ally.    While  the  language  used  is  somewhat  ambiguous,  taken  in  con- 
nection with  section  107  of  the  same  act,  we  think  it  was  intended  to 
give  the  mayor  and  council  power  to  provide  general  rules  upon  these 
subjects  by  ordinance.     Section  107  provided  that  in  every  city  of  the 
metropolitan  class  there  should  be  a  board  for  the  inspection  of  build- 
ings, which  should   "  have  charge  of  the  enforcing  of  all  ordinances 
pertaining  to  party  walls,    or  the  erection,   construction,   alteration, 
{^jv^     repair,  or  removal  of  buildings."     In  other  words,  the  power  to  make 
f^ }j\ju-\  I'w^es  on  such  subjects  was  left  to  the  city ;  the  power  to  apply,  execute 
"^1^  fand  enforce  them  was  intrusted  to  this  board.     The  statute  also  pro- 
'^^J^^    Ivided  that  the  principal  and  executive  officer  of  the  board  should  be 
^  *  'an  inspector  of  buildings,  and  the  city  authorities,  evidently  constru- 

ing the  statute  as  we  have  done,  provided,  in  the  ordinances  shown 
in  evidence,  certain  general  rules  for  carrying  out  the  powers  given  by 
section  36,  and  left  their  execution  to  that  officer.  The  contention  of 
the  plaintiff  is  that  the  provisions  of  the  ordinance  as  to  the  mode  of 
procedure  in  removing  a  dangerous  building  were  not  strictly  adhered 
to,  and  that  for  such  reason  the  defendants  became  liable.  A  verdict 
for  the  defendants  was  directed  in  the  trial  court,  and  the  plaintiff  has 
come  here  by  petition  in  error. 

We  are  of  opinion  that  jthe_city  jwa_s  not  liable  for  thj  manner  in 
which  llio  board  for  the  inspection  of  buildings  exercised  its  office. 
The" execution  of  laws  and  ordinances  as  tp  the  erection,  rcpair_and 
removal  of  buildings  was  given  expressly,  not  to  the  city,  but  to  this 

1  Compiled  Statutes,  1893,  ch.  12  a. 


MUKKAY   V.    OMAHA.  543 

board.  The  board  was  nqt,  pn(\(\r  tlip  nontrol  nf  tho.  oajj  ornyprnmpnt.  l  A^  ftNT^^ 
"Put  exercised  its  ovi'n  discretion.  It  could  not  be  ordered  to  condema  *  \:JJ^^ 
or  remove  this  or  that  building.     All  the  city  could  do  was  to  enact  ' 

ordinances  providing  general  rules.     When  these  were  enacted,  their 
execution   and  application  was  left  to  the  board.     The  city  did   not 
enforce    them.     As  the  board  was  the  creature  of  the  statute,   and 
exercised  powers  derived  from  the  state,  not  from  the  city,  we  do  not 
see  how  it  can  be  said  to  represent  the  municipality  so  as  to  make  the 
latter  liable  for  its  wrongful   acts.     The  individual  members  are  the 
persons  to  proceed  against,  not  the  city.     As  a  general  rule,  a  munici-^     IlcajIJl  ' 
pal  corporation  is  not  liable  for  the  torts  of  an  independent  board,  ' 
constituted   by  the  charter  or  by  general  law  to  perform  some  public 
service   from  which  the  municipality  derives  no  special  advantage  in  : 
its  corporate  capacity,  even  though  the  duties  imposed  on  such  board  1 
might  have  been  imposed  upon  the  municipality,  and  its  members  are_ ' 
"ajipointed  by  the  municipal  government  under  the  provisions  of  the 
clTarter  or  law.      1  Beach,  Public  Corporations,  sec.   740  ;  Williams, 
Municipal  Liability  for  Tort,  sees.  IG,  17  ;  20  Am.  &  Eng.  Ency.  Law    ^  _^ 

[2d  ed.],  1203.  In  such  case  the  board  represents  the  state  and  ex-  y'^\^'''^i  . 
ercises  its  sovereignty  ;  it  is  not  an  agent  of  the  municipality.  That  • 
the  duties  confided  to  the  board  in  question  were  for  the  interest  of 
the  general  public  and  might  equally  well  have  been  left  to  a  board 
appointed  by  the  state  government,  or  even  to  a  state  officer,  is  illus- 
trated by  other  provisions  in  our  laws.  Not  to  mention  the  variou3 
statutes  which  are  or  have  been  in  force  providing  for  appointment  of 
fire  and  police  commissions  by  the  governor,  and  giving  such  boards 
extensive  powers  in  municipal  affairs,  section  15,  chapter  30,  Compiled 
Statutes,^  1901,  puts  the  execution  of  the  laws  as  to  fire-escapes  in 
the  hands  of  the  state.  This  is  a  matter  of  general  public  concern  of 
the  same  nature  as  the  condemnation  and  removal  of  dangerous,  de- 
cayed and  inflammable  structures  ;  and  it  is  obvious  that  in  either 
case  the  police  power  of  the  state  is  exercised,  and  the  authority  which 
the  state  sets  up  to  wield  that  power  represents  the  sovereignty  of  the 
state.  Such  has  been  the  general  course  of  decision  with  respect  to 
boards  so  constituted.  Bryant  v.  Cily  of  St.  Paul,  33  Minn.  289, 
23  N.  "W.  Rep.  220;  McGinnis  v.  JnJmbitcmts  of  Medivay,  176  Mass. 
67,  57  N.  E.  Rep.  210  ;  Gilboy  y.  City  of  Detroit,  115  Mich.  121,  73 
N.  W.  Rep.  128;  Mead  v.  City  of  New  Haven,  40  Conn.  72,  16  Am. 
Rep.  14.  In  Bryant  v.  City  of  St.  Paul,  —  a  case  in  which  responsi- 
bility for  the  acts  of  a  board  of  health,  composed  of  the  city  engineer, 
city  physician  and  four  members  of  the  city  council,  was  in  question,  — 
the  court  said:  "The  duties  of  such  officers  are  not  of  that  class  ofi 
municipal  or  corporate  duties  with  which  the  corporation  is  charged  in 
consideration  of  charter  privileges,  but  are  police  or  governmental  /unc- 
tions,  which  could  be  discharged  equally  well  through  agents  appointed 

1  Cobbey,  Annotated  Statutes,  sec.  6359. 


544 


MURRAY   V.    OMAHA. 


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by  the  state,  though  usually  associated  with  and  appointed  by  the  mu- 
nicipal body.  The  nature  of  the  duties  as  public  are  the  same  in  either 
ease."  In  McGinnis  v.  Inhabitants  of  Medivaij,  supra,  it  was  held 
that  the  municipality  was  not  liable  for  the  acts  of  a  liquor-licensing 
board  consisting  of  the  selectmen  of  a  town.  In  Mead  v.  City  of  New 
Haven,  supra,  the  city,  under  power  conferred  by  its  charter,  appointed 
an  inspector  of  steam  boilers  and  provided  through  a  by-law  that  no 
one  should  use  such  a  boiler  until  it  had  been  tested  by  the  inspector. 
It  was  held  that  the  city  was  not  liable  for  negligence  of  such  inspector, 
the  court  saying :  "  The  city  must,  we  think,  be  regarded  as  the  agent 
of  the  irovernment,  and  acting  for  the  state  and  not  for  itself  in  making 
the  appointment  of  inspectors,  and  therefore  not  liable  for  the  in- 
spector's negligence."  It  can  make  no  difference  that  the  board  was 
charged  with  the  enforcement  of  municipal  ordinances..  The  same  is 
true  of  police  commissions,  excise  boards,  boards  of  health,  and  the 
like,  as  to  which  it  is  settled  no  liability  attaches  to  the  municipality. 
The  ordinances  which  the  board  was  constituted  to  carry  out  were 
enacted  under  authority  of  the  state  in  furtherance  of  the  police  power 
of  the  state.  The  matters  provided  for  might  have  been  covered  by 
general  statute,  and  put  in  charge  of  general  state  officers,  had  the 
legislature  so  preferred. 

It  is  contended  that  the  city  should  be  held  for  the  reason  that  it 
afterwards  ratified  and  adopted  the  wrongful  acts  of  the  board.  The 
acts  in  question  were  not  within  the  scope  of  the  authority  of  the  gen- 
eral municipal  ofHcers,  and  we  do  not  see  how  they  could  do  by  ratifi- 
cation what  the  statute  confided  to  other  and  independent  officers. 
The  enforcement  of  building  ordinances  was  for  the  board,  not  the 
city,  and  the  city  could  not  enforce  them  by  adoption  or  ratification, 
any  more  than  in  the  first  instance.  Calivellv.  City  of  Boone,  51  la.. 
687,  2  X.  W.  Rep.  614,  33  Am.  Eep.  ld4^Petel-s  v.  CJty  of  Linds- 
borg,  40  Kan.  654,  20  Pac.  Rep.  490.  In  City  of  Omaha  v.  Crofty 
60  Nebr.  57,  the  acts  complained  of  were  in  the  line  of  the  city's 
authority,  and  done  by  virtue  of  an  ordinance  providing  therefor. 
The  city  had  the  power  to  do  them  in  the  first  instance,  and  could 
ratify  and  adopt  them  when  done  by  others. 

We  recommend  that  the  judgment  be  affirmed. 

Barxes  and  Oldham,  CC,  concur. 

By  the  Court:  For  the  reasons  stated  in  the  foregoing  opinion,  the 
judgment  of  the  district  court  is 

Affirmed. 


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EELER   V.   GILSUM. 


GILSUM. 


545 


WHEELER 


73  N.  H.  429. 

Case,  for  negligence,  March  2,  1902,  the  plaintiff  owned  and  oc- 
cupied a  sawmill  on  the  bank  of  the  Ashuelot  river.  On  that  day  an 
ice  jam  in  the  river  above  the  mill  caused  the  water  of  the  stream,  in- 
creased by  surface  water  accumulating  from  rain  and  melted  snow,  to 
overflow  a  highway  in  the  town  of  Gilsum,  preventing  travel  thereon. 
A  highway  agent  of  the  town,  under  the  direction  and  control  of  one 
of  the  selectmen,  went  upon  the  river  outside  the  highway  and  at- 
tempted to  break  up  the  ice  with  dynamite,  so  that  the  water  might 
drain  otT  from  the  highway.  The  work  was  negligently  done,  with 
the  result  of  increasing  the  water  in  the  highway  above  the  jam  and 
of  weakening  the  ice  so  that  it  subsequently  broke  up,  and  the  water 
and  ice  flooded,  crushed,  carried  away,  and  practically  destroyed  the 
plaintiff's  mill.  The  town,  through  its  oflScers  and  citizens,  had  no- 
tice of,  and  could  have  removed,  the  danger  to  the  plaintiff's  property 
created  by  the  negligent  attempt  to  break  up  the  ice.  The  expense 
of  what  was  done  was  paid  by  the  town.  The  plaintiff  was  without 
fault. 

After  the  opening  statement  by  plaintiff's  counsel  of  the  grounds 
upon  which  recovery  was  claimed,  in  substance  as  above  set  forth,  a 
nonsuit  was  ordered,  and  the  plaintiff  excepted.  Transferred  from 
the  October  term,   1904,   of  the  superior  court  by  Peaslee,  J. 

Parsons,  C.  J.  In_  rejmiring  the  highway  under  the  direction  of  the 
selectmen  (Laws  1897,  c.  67,  s.  1),  the  highway  agent  was  a  public 
officer,  for  whose  negligent  acts  in  the  performance  of  his  duty  the 
town  is  not  liable.  O'Brien  v.  Derry,  73  N.  H.  198 ;  Hall  v.  Concord, 
71  N.  H.  367;  Doicnes  v.  Hopkinton,  67  N.  H.  456;  Wakefield  v. 
Neiuport,  62  N.  H.  624;   Grimes  v.  Keene,  52  N.  H.  330. 

The  principle  under  which  a  town  may  be  liable  for  an  injury 
to  private  property  rights  by  an  abuse  of  its  possessory  right  in 
the  highway  —  permitting  an  unreasonable  use  of  the  land  to  the 
Injury  of  another  {Clair  v.  Mundiester,  72  N.  H.  231  ;  Flanders  v. 
FranJclin,  70  N.  H.  168;  Gllman  v.  Laconia,  55  N.  H.  130)  —  has 
no  application.  The  plaintiff's  injury  was  not  occasioned  by  an  un- 
~feasouable  use  of  the  town's  proi)erty  right,  made  or  permitted  by  the 
town.  The  dangerous  condition  in  the  river  was  due  to  natural  causes, 
or  to  their  action  combined  with  the  negligence  of  public  officers. 
These  causes  created  a  nuisance  which  threatened  alike  the  property 
of  the  town  and  that  of  the  plaintiff.     The  nuisance  was  not  within 


the  highway,  nor  was  it  connected  therewith  in  any  way.  It  did  not 
c"onsist  in  anything  appurtenant  to  tlie  highway,  which  the  town  used 
for  the  benefit  of  its  highway  property,  though  without  the  limits  of 
the  highway.     If  the  town  could  rightfully  go  without  the  limits  of  the 


546  MILLS   V.    CITY    OF   BROOKLYN. 

high-way  to  abate  the  nuisance  created  by  the  elements  and  the  action 
of  the  highway  agent,  which  threatened  injury  to  its  highway  property, 
and  would  be  liable  to  the  plaintiff  for  an  injury  resulting  from  a  neg- 
ligent exercise  of  such  right  by  the  town,  the  power  to  abate  such 
nuisance  was  merely  a  right  which  the  town  had  for  its  own  benefit  — 
not  a  duty  imposed  upon  it  for  the  benefit  of  the  plaintiff.  As  no 
duty  rested  with  the  town  to  act  for  the  protection  of  the  plaintiff,  its 
failure  merely  to  take  action  is  not  actionable  negligence.  Bach  v. 
Company,  69  N.  H.  257  ;  McGill  v.  Granite  Co.,  70  N.  H.  125.i 

Exception  overruled. 
All  concurred.  O      .^ 

MILLS   V.    CITY  OF  BROOKLYN^   *^**''^-w3^^"-M>v 

1865.     32  New  York,  489.^  '^^^^^<$J/'*''''^      ^ 

Denio,  C.  J.  .  .  .  The  grievance  of  which  the  plaintiffs  complain,  isSy  p> 
that  suflficient  sewerage  to  carrj-  otf  the  surface  water  from  their  lot  and  ^ 

house  has  not  been  provided.  A  sewer  of  a  certain  capacity-  was  built, 
but  it  was  insufficient  to  carry  off  all  the  water  which  came  down  in  a  rain 
storm,  and  the  plaintiffs'  premises  were,  to  a  certain  extent,  unprotected. 
Their  condition  was  certainly  no  worse  tlian  it  would  have  been  if  no 
sewer  at  all  had  been  constructed.  So  far  as  the  one  laid  down  operated, 
it  relieved  the  plaintiffs'  lot ;  l)ut  the  relief  was  not  adequate.  If  the 
defendants  would  have  been  liable  if  they  had  done  nothing,  they  are 
of  course  liable  for  the  insufficient  character  of  the  work  which  was 
constructed. 

But  it  is  not  the  law  that  a  municipal  corporation  is  responsible  in  a 
])r]vate  action  for  not  providing  sufficient  sewerage  for  every,  or  for  any 
Ijart  of  the^city  or  yjllagg.  The  duty  of  draining  the  streets  and  ave- 
nues of  a  city  or  village,  is  one  requiring  the  exercise  of  deliberation, 
judgment  and  discretion.  .  It  cannot,  in  the  nature  of  things,  be  so 
executed  that  in  ever}'  single  moment  every  square  foot  of  the  surface 
shall  be  perfectly  protected  against  the  consequence  of  water  falling 
'from  the  clouds  upon  it.  This  duty  is  not,  in  a  technical  sense,  a  judi- 
cial one,  for  it  does  not  concern  the  administration  of  justice  between 
citizens  ;  but  it  is  of  a  judicial  natiixe,  for  it  requires,  as  I  have  said, 
the  same  qualities  of  deliberation  and  judgment.  It  admits  of  a  choice 
of  means,  and  the  determination  of  the  order  of  time  in  which  improve- 
ments shall  be  made.  It  involves,  also,  a  variety  of  prudential  con- 
siderations relating  to  the  burdens  which  may  be  discreetly  imposed  at 
a  given  time,  and  the  preference  which  one  locality  may  claim  over 

1  See  Buh,er  v.  Eden,  82  Me.  352,  19  AtL  829,  9  L.  R.  A.  205  ;  3Iurph>/  v.  Needham, 
17G  .Mass.  422,  67  N.  E.  689. 
'■^  btatemeut8  and  arguments  omitted  ;  also  portions  of  opinion.  —  Ed. 


MILLS   V.    CITY   OF   BROOKLYN.  547 

another.     If  the  owner  of  property  may  prosecute  the  corporation  on 
the  ground  that  sufficient  sewerage  has  not  been  provided  for  his  prem-  '   "^ 

ises,  all  these  questions  must  be  determined  by  a  jury,  and  thus  the    0^^   )j 
judgment  which  the  law  has  committed  to  the  city  council,  or  to  an    '^'^)^/>*/K 
administrative  board,  will  have  to  be  exercised  by  the  judicial  tribunals.     '  -     '  ^ 
The  court  and  jur}'  would  have  to  act  upon  a  partial  view  of  the  ques- 
tion, for  it  would  be  impossible  that  all  the  varied  considerations  which 
might  bear  upon  it  could  be  brought  to  their  attention  in  the  course  of 
a  single  trial.     Such  a  system  of  law  would  be  as  vexatious  in  prac- 
tice as  it  is  unwarranted  in  law.     It  has  been  frequently  invoked,  but 
never,  I  believe,  with  success. 

It  ma\',  therefore,  be  laid  down  as  a  very  clear  proposition,  that  if 
no  sewer  had  been  constructed  at  the  locality  referred  to,  an  actiorT 
would  not  lie  against  the  corporation,  though  the  jur}-  should  find  that 
^iie  w'as  necessarv,  and  that  the  defendants  were  guiltj'  of  a  dereliction 
of  duty  in  not  having  constructed  one.  ' 

But  the  defendants  put  down  a  sewer  which  was  insufficient  to  carry- 
off  all  the  surface  water  which  fell  during  a  violent  sliower.  There  was 
no  want  of  skill  in  constructing  it;  simply  it  was  not  sufficiently  large- 
The  evidence  was  that  it  could  not  have  been  made  larger  on  account 
of  the  grade  and  size  of  the  system  of  sewers  with  which  it  connected, 
and  through  which  the  water  had  to  be  carried  off.  The  evidence  as 
to  this  was  entirely  uncontradicted  ;  and  there  was  nothing  intrinsic- 
ally improbable  in  the  assertion.  Unless  the  defendants  were  respon- 
sible for  the  want  of  judgment  upon  which  that  system  was  devised,  I 
do  not  see  wh}'  this  evidence  was  not  a  complete  answer  to  the  action  ; 
and  that  the}-  were  not  responsible  for  that,  follows  from  what  has 
already  been  said.  Very  man\-  considerations  besides  the  protection 
of  the  land  upon  which  the  plaintiffs'  house  was  erected,  no  doubt 
entered  into  the  question  when  that  system  was  determined  upon.  It 
is  inferable  from  the  evidence  that  the  plaintiffs'  land  was  then  vacant 
and  unimproved,  and  that  the  adjacent  streets  had  not  been  graded. 
While  that  state  of  things  existed  it  was  seen  that  the  surface  water 
was  absorbed  by  the  earth,  and  injured  no  one.  No  doubt  public 
improvements,  in  a  growing  town,  ought  to  be  made  with  a  ceitain 
reference  to  anticipated  changes.  But  it  would  require  a  degree  of 
wisdom  an:i  foresight  not  usuall}'  met  with  in  public  offi'jers,  to  adjust 
and  appl}  the  expenditures  for  public  purposes  so  perfecth*  that  no 
deficienc}"  or  redundanc}'  would  ever  be  found  to  exist.  It  is  a  wise 
provision  of  the  law  that  an  action  for  damages  does  not  lie  for  such 
errors  of  judgment  on  the  part  of  the  agents  "of  the  public. 

[Certain  authorities  referred  to]  are  all  cases  where  the  injurj'  was 
either  the  result  of  suffering  a  municipal  work  to  be  out  of  repair,  or 
where  the  defendants  had  done  acts  which  were  in  themselves  positive 
nuisances.     Thej*  furnish  no  ground  for  holding  a  municipal  corpora- 


548  ASHLEY  V.    CITY  OF  PORT  HURON. 

tion  responsible  for  not  providing  suitable  sewerage,  whether  the  neg- 
lect was  total,  or  partial  onh*,  arising  from  the  insufficiency  of  a  sewer 
to  discharge  all  the  water  which  it  was  intended  to  carry  otf. 

The  questions  in  this  case  were  raised  by  the  motion  to  dismiss,  on 
account  of  the  insufficienc}'  of  the  complaint,  which  did  not,  according 
to  the  foregoing  views,  set  forth  a  cause  of  action,  and  by  one  of  the 
points  taken  at  the  close  of  the  trial. 

I  am  in  favor  of  reversing  the  judgment  of  the  Supreme  Court  [which 
was  in  favor  of  plaintiff],  and  ordering  a  new  trial.^ 

Judgment  reversed  and  new  trial  ordered.  Jl    ^_^  "^ 


ASHLEY  V.   CITY  OF  PORT   HURON. 

1877.     3.5  Michigan,  296.2 

CooLET,  C.  J.  The  action  in  this  case  was  instituted  to  recover 
damages  for  an  injury-  caused  to  the  house  of  the  plaintiff  b}'  the  cut- 
ting of  a  sewer  under  the  direction  of  the  cit}'  authorities,  and  under 
city  legislation,  the  validity  of  which  is  not  disputed.  The  necessary 
result  of  cutting  the  sewer,  the  plaintiff  claims,  was,  to  collect  and 
throw  large  quantities  of  water  upon  his  premises  which  otherwise 
would  not  have  flowed  upon  them  ;  and  it  is  for  an  injury  thereb}' 
caused  that  he  sues.  The  evidence  offered  on  the  part  of  the  plain- 
tiff tended  to  establish  the  case  he  declared  upon,  but  the  court 
instructed  the  jury  that  though  ihey  should  find  the  facts  to  be  as  the 
plaintiff  claimed,  they  must  still  return  a  verdict  for  the  defendant. 
The  ground  of  this  decision,  as  we  understand  it,  was,  that  the  city,  in 
ordering  the  construction  of  the  sewer  and  in  constructing  it,  was  act- 
ing in  the  exercise  of  its  legislative  and  discretionary  authority,  and 
was  consequent!}'  exempt  from  anv  liability  to  persons  who  might 
happen  to  be  injured.  Tiiat  is  the  ground  that  is  assumed  by  counsel 
for  the  city  in  this  court,  and  it  is  supposed  to  be  the  ground  on  which 
the  case  was  decided  in  the  court  below. 

In  Pontiac  v.  Garter,  32  Mich.,  164,  the  question  of  the  liability  of 
a  municipal  corporation  for  an  injury  resulting  from  an  exercise  of  its 
legislative  powers  was  considered,  and  it  was  denied  that  any  liability 
could  arise  so  long  as  the  corporation  confined  itself  within  the  limits 
of  its  jurisdiction.  That  was  a  case  of  an  incidental  injury  to  property 
caused  b\'  the  grading  of  a  street.  The  plaintiff's  jDremises  were  in  no~" 
way  invaded,  but  the}'  were  rendered  less  valuable  by  the  grading,  and 
there  was  this  peculiar  hardship  in  the  case,  that  the  injury  was  mainly 
or  whollj'  owing  to  the  fact  that  the  plaintiff's  dwelling  had  been  erected 

1  See  Chicafjo  v.  Sehen,  165  111.  371,  46  N.  E.  244,  56  Am.  St.  Rep.  245 ;  Bowden  v. 
Kansas  City,  69  Kan.  587,  77  Pac.  573,  105  Am.  St.  Hep.  187 ;  Hart  v.  Millsville,  126 
Wis.  546,  104  N.  W.  699,  1  L.  R.  A.  N.  S.  962. 

2  Citations  of  counsel  omitted.  —  Ed.         i\  ^  ^ySi^X^^^^ 


ASHLEY   V.    CITY   OF   PORT    HURON. 


549 


with  reference  to  a  grade  previously  established  and  now  changed.  In 
the  subsequent  case  of  Citi/  of  Detroit  v.  Beckman,  34  3Iic...^  125,  the 
same  doctrine  was  reaffirmed.  That  was  a  case  of  injur\'  b}'  being  over- 
turned in  a  street  in  consequence  of  what  was  claimed  to  be  an  insuffi- 
cient covering  of  a  sewer  at  a  poi*:^  where  two  streets  crossed  each 
other.  It  was  counted  upon  as  a  case  of  negligence,  but  the  negligence 
consisted  only  in  this,  that  the  cit}'  had  failed  to  provide  for  covering 
the  sewer  at  the  crossing  of  a  street  for  such  a  width  as  a  proper  re- 
gard for  the  safety  of  people  passing  along  the  street  would  require. 
If  this  case  is  found  to  be  within  the  principle  of  the  cases  referred  to, 
the  ruling  below  must  be  sustained,  and  that,  we  think,  is  the  only 
question  we  have  occasion  to  discuss. 

The   cases   that  bear    upon   the    precise   point    now   involved    are 
numerous. 


In  Rochester   White  Lead  Co.  v.  Rochester,  ^  JST.  Y.,  463,  the  city    '^^^^^K^ 
was  made  to  respond  in  damages  for  flooding  private  premises  with      l;-*^'***^'*^ 
waters  gathered  in  a  sewer.     This  case  is  commented  on  in  Mills  v.  ^*'"*'^ 

^T^oaJclyny  32  iVi   Y.,  489,  and  distinguished  from  one  in  which  the  in-" 
jury  complained  of  a/ose  from  the  insufficiency  of  a  sewer  which  was 
constructed  in  accordance  with  the  plan  determined  upon.     Obviously 
the  complaint  in  that  case  was  of  the  legislation  itself,  and  of  incidental 
injuries  which  it  did  not  sufficiently  provide  against.     The  like  injuries 
might  result  from  a  failure  to  construct  any  sewer  whatever  ;  but  cleailj' 
no  action  could  be  sustained  for  a  mere  neglect  to  exercise  a  discretion- 
ary authorit}'. — Compare  Smith  v.   Mayor,  etc.,  %  N'.    Y.  Sup.  Ct.     ., 
(T.  t&  C),  685  ;  4  Hun,  637  ;  Mms  v.  Mayor,  etc.,  59  JV.   Y.,  500./  -foM^  V* 
Cases  of  flooding  lands  b^'  neglect  to  keep  sewers  in  repair,  of  which    J^rtUlwM,  ' 
Bartonv.  Syracuse,  37  Barb.,  292,  and  36  iV".   Y.,  54,  is  an  instance,  J'j^c**^ 

are  passed  hy,  inasmuch  as  it  is  not  disputed  b}-  counsel  for  the  defend-i 
ant  in  this  case  that  for  negligent  injuries  of  that  description  the  corpo- 
ration would  be  responsible.  Those  cases  are  supposed  by  counsel  to 
be  distinguished  from  the  one  before  us  in  this :  that  here  the  neglect 
complained  of  was  onl}-  of  a  failure  to  exercise  a  legislative  function, 
and  thereby  provide  the  means  for  carrying  off  the  water  which  the 
sewer  threw  upon  the  plaintiff's  premises.  The  distinction  is,  that  the 
obligation  to  establish  and  open  sewers  is  a  legislative  duty,  while 
the  obligation  to  keep  them  in  repair  is  ministerial.  But  it^is  not 
strictly  the  failure  to  construct  sewers  to  carr}'  off  the  water  that  is  com- 
plained of  in  this  case  ;  it  is  of  the  positive  act  of  casting  water  upon 
the  plaintiffs  premises  b}'  the  sewer  already  constructed. 

[After  citing  cases  where  an  action  like  the  present  was  sus- 
tained.] 

It  is  \Qvy  manifest  from  this  reference  to  authorities,  that  the)-  recog- 
nize in  municipal  corporations  no  exemption  from  responsibility  where 
the  injury  an  individual  has  received  is  a  direct  injury  accomplished  by 


-a*<v-*«>5 


C*.  '[^ 


t-M 


550  KEVINS    V.    CITY   OF   PEORIA. 

a  corporate  act  which  is  in  the  nature  of  a  tres])ass  upon  him.  The 
right  of  an  individual  to  the  occupation  and  eujoyment  of  his  premises 
is  exclusive,  and  the  pubhc  authorities  have  no  more  libert}'  to  trespass 
upon  it  than  has  a  private  individual.  If  the  corporation  send  people 
with  picks  and  spades  to  cut  a  street  througli  it  without  first  acquiring 
the  right  of  wa}',  it  is  liable  for  a  tort ;  but  it  is  no  more  liable  under 
such  circumstances  than  it  is  M'hen  it  pours  upon  his  land  a  flood  of 
water  by  a  public  sewer  so  constructed  that  the  flooding  must  be  a 
necessary  result.  The  one  is  no  more  unjustifiable,  and  no  more  an 
actionable  wrong,  than  the  otlier.  Each  is  a  trespass,  and  in  each  in- 
stance the  cit3-  exceeds  its  lawful  jurisdiction.  A  municipal  charter 
never  gives  and  never  could  give  authoritj'  to  appropriate  the  freehold 
of  a  citizen  without  compensation,  whether  it  be  done  through  an  actual 
taking  of  it  for  streets  or  buildings,  or  by  flooding  it  so  as  to  interfere 
with  the  owner's  possession.  His  property  right  is  appropriated  in  the 
one  case  as  much  as  in  the  other.  —  PumpeUy  v.  Green  Bay  Co.,  13 
Wcill.^  166  ;  Arimond  v.  Green  Bay,  etc.,  Co.,  31  Wis.,  316  ;  Eaton 
V.  B.  C.  d  M.  li.  B.  Co.,  51  JSF.  H.,  504. 

A  like  excess  of  jurisdiction  appears  when  in  the  exercise  of  its 
powers  a  municipal  corporation  creates  a  nuisance  to  the  injury  of  an 
individual.  The  doctrine  of  liability  in  such  cases  is  familiar  and  was 
acted  upon  in  Pennoyer  v.  Saginaw,  8  Mich.,  534. 

•  ••••  ■•• 

Judgment  reversed.     New  trial  ordered.^ 


S 


4- 

NEVINS   V.   CITY  OF   PEORIA. 

1866.     41  Illinois,  502,  pp.  508,  509,  511,  512,  515 

Lawrence,  J.  .  .  .  The  cit}*  is  the  owner  of  the  streets,  and 
legislature  has  given  it  power  to  grade  them.     But  it  has  no  more 
power  over  them  than  a  private  individual  has  over  his  own  land,  and  4  ^.  ' 
it  cannot,  under  the  specious  plea  of  public  convenience,  be  permitted  ^ 

to  exercise  that  dominion  to  the  injur}-  of  another's  property  in  a  mode  ^^^ 
that  would  render  a  private  individual  responsible  in  damages,  without -^tc^ 
being  responsible  itself.     Neither  State  nor  municipal  government  can     /^ 
take  private  property  for  public  use  without  due  compensation,  and'"^\^ 
this  benign  provision  of  our  Constitution  is  to  be  applied  by  the  courts  ^*l/ 
whenever  the  property  of  the  citizen  is  invaded,  and  without  reference     ^ 
to  the  degree.     We  can  solve  more  easily-  and  safel}-  questions  of  this    /^ 
^  character   if  we  take  pains  to  free  our  minds  from   the  false    notion 
that  a  municipality  has  some  indefinable  element  of  sovereign  power      "O^ 

1  See  Bates  v.  Wesihorou^h ,  151  INIass.  174,  23  X.  E.  1070,  7  L.  R.  A.  156  ;  King  r. 
Granger,  21  H.  I.  93.  41  Atl!  1012,  79  A.  S.  R.  779  ;  Piatt  v.  Waterbury,  72  Conu,  531, 
45  Atl.  154,  48  L.  R.  A,  691;    Uppington  v.  New  York,  165  N.  Y.  223. 


NEVINS   V.   CITY    OF   REOPIA.  551 

which  takes  from  the  propert}-  of  the  citizen,  as  against  its  aggressions, 
the  protection  enjoyed  against  the  aggressions  of  a  natural  person. 

*•  •••••  • 

It  is  said  that  the  city  must  grade  streets  and  direct  the  flow  of 
waters  as  best  as  it  can  for  the  interests  of  the  pul)lic.  Undoubtedly, 
but  if  the  public  interest  requires  that  the  lot  of  an  individual  shall  be 
rendered  unfit  for  occupancy,  either  wholly  or  in  part,  m  this  process 
of  grading  or  drainage,  why  should  not  the  public  pay  for  it  to  the 
extent  to  which  it  deprives  the  owner  of  its  legitimate  use?  Why  does 
not  the  constitutional  provision  apply  as  well  to  secure  the  payment  for 
property  partially  taken  for  the  use  or  convenience  of  a  street,  as  when 
wholly  taken  and  converted  into  a  street?  Surely  the  question  of  the 
degree  to  which  the  property  is  taken  can  make  no  difference  in  the 
application  of  the  principle.  To  the  extent  to  which  the  owner  is 
deprived  of  its  legitimate  use  and  as  its  value  is  impaired,  to  that 
extent  he  should  be  paid. 

There  is  much  conflict  of  authority  upon  this  question,  and  those 
courts  which  have  taken  a  view  different  from  our  own,  rest  their  con- 
clusions in  part  upon  the  doctrine  of  public  necessity,  aiid  the  impor- 
tance of  preserving  unimpaired,  for  purposes  of  pubUc  improvement, 
the  efficiency'  of  municipal  corporations.  In  our  opinion,  the  theory 
that  private  rights  are  ever  to  be  sacrificed  to  public  convenience  or 
necessity,  without  full  compensation,  is  fraught  with  danger,  and  should 
find  no  lodgment  in  American  jurisprudence.  To  prevent  this  was  the 
object  of  some  of  the  most  important  of  our  constitutional  guaranties. 
The  property  of  the  majority  who  control  the  government  is  in  no 
peril ;  it  is  that  of  a  feeble  minority  which  is  in  danger,  and  when-  '  "^ 
ever  that  is  sought  to  be  taken  in  a  time  of  peace,  under  pretense  of  ^ 

public  necessity  or  convenience,  the  owygr  must  find  protection  in  the        .  y^,v/^><n 
courts,  or  our  institutions  have    failel^pf  their   great  purpose  —  the^ 
complete  security  of  private  rights.     It  is  undoubtedly  important,  as' 
urged  in  the  argument,  that  our  cities  should  improve  rapidly,  and  be 
able  to  carry  onward  large  systems  of  drainage  and  grading,  but,  in 
the  attainment  of  these  ends,  they  cannot  be  permitted  to  sacrifice  the 
property  of  the  humblest  citizen  without  compensation.     Neither  is  it 
true  that  the  rule  we  lay  down  will  interfere  with  the  growth  of  cities, 
as  the  expense  of  grading  is  not  very  largely  increased  by  the  con- 
struction of  proper  gutters  and  culverts  for  the  flow  of  water. 

-^-^         •  'T'u^j-o  ^^ 

Thus  the  cases  divide    themselves   into   tjyo  classe^rr^ne,  and  the  ^3  '^^  ♦-^* 
larorer  class,  holdina;  that  a  city  is  onlv  held  to  reasonable  care  jjJOd- 
skill  in  grading  its  streets,  and  that  if  these  are  used,   it  jcan.  shield.  ^  ^ 
itself  under  its  corporate  powers  from  liability  to  individual^tlie  otlier  ^ 
holding  that  a  city  in  the  management  of  corporate  property  mustbe         '^ 
Held  to  the  same  responsibilities  that  attach  to  individuals  for  injury,  to, 
tlie  property  of  otliers.      We  cannot  doubt  that  the  latter  is  the  sounder 
rule.     We  are  unable  to  see  why  the  property  of  an  individual  shouhi 


^^.r-^ 


'a-1 
>— ^^. 


552  KEASY  V.   CITY   OF   LOUISVILLE. 

be  sacrificed  for  the  public  convenience  without  compensation.  Wo  do 
not  think  it  sufficient  to  call  it  dammim  absque  injuria.  We  know 
our  Constitution  was  designed  to  prevent  these  wrongs.  We  are  of 
opinion,  that,  for  injuries  done  to  the  property  of  the  appellant  in  the 
case  before  us,  b}'  turning  a  stream  of  mud  and  water  upon  his  prem- 
ises, or  by  creating  in  the  immediate  neighborhood  of  his  dwelling  an 
offensive  and  unwholesome  pond,  if  the  jury  find  these  things  to  have 
been  done,  the  city  of  Peoria  must  respond  in  damages. 


KEASY  V.   CITY  OF   L0UISVILLE7 

1836.     4  Dana  {Kentucky),  15-t. 


From  the  Circuit  Court  for  Jefferson  County. 

Nicholas,  for  plaintiff. 

Guthrie.,  for  defendant. 

Robertson,  C.  J.  Daniel  Keasy,  owning  a  lot  on  Jefferson  streetf, 
in  Louisville,  on  which  he  had  erected  a  small  wooden  house,  since  that 
street  had  been  graded  and  paved,  under  tlie  charter  of  incorporation  j 
of  1828 —  sued  the  city,  in  an  action  on  the  case,  for  elevating  the  "-tt, 
grade  about  tliree  feet  above  the  level  of  his  lot,  after  he  had  thus  im-  'A^ 
proved  it,  correspondently  with  the  first  grade,  in  consequence  of  which     y^ 

be  had,  as  he  avers,  to  fill  up  his  lot  and  reconstruct  his  house,  and  had    ^ 

been,  in  other  respects,  subjected  to  inconvenience  and  damage.  ^^  i 

The  facts,  as  alleged,  having  been  proved  on  the  trial,  on  the  general   -Q" 
issue,  the  court  instructed  the  jury  that,  if  the}-  should  believe,  '^  from     ^ 
all  the  evidence,  that  the  Mayor  and  councilmen  of  the  city  of  Louis-    ^Mi 
villc  had  the  street  filled  or  raised  for  the  purpose  of  carrying  off  the       a 
water  in  that  part  of  the  cit}-,  and  the  injury  complained  of  arose  from      u 
filling  or  raising,  they  ought  to  find  for  the  defendant." 

Verdict  and  judgment  were  accordingly  renderefTTh  bar  of  the  action. 
And  it  is  that  judgment  which  the  plaintifl^"  in  error  now  seeks  to 
reverse. 

The  constitutional  power  to  incorporate  the  citizens  of  Louisville  into 
a  municipal  bod}'  politic,  possessing,  as  everv  artificial  as  well  as  natu- 
ral being  ought  to  possess,  a  self-will  and  the  faculty  of  acting,  of  regu- 
lating its  own  affairs,  and  of  governing  its  constituent  members,  as  far 
as  may  be  consistent  with  its  charter,  the  federal  and  state  consti- 
tutions and  the  general  laws  of  the  Commonwealth,  and  as  ma}'  be 
proper  for  effectuating  the  legitimate  ends  of  its  creation,  has  been  con- 
ceded by  the  plaintifi"  in  error,  in  the  fact  of  suing  the  corporation,  and 
has,  also,  been  necessarily  presupposed  by  the  Circuit  Judge,  in  giving 
his  hypothetical  instruction  to  find  for  the  Citi/  as  defenchint.  And, 
not  doubting  eitlier  the  power  of  incorporating  the  city,  or  the  incidental 


KEASY   V.    CITY   OF   LOUISVILLE. 


553 


'YjUL<<   V — 


corporate  right,  either  inherent,  or  derived  from  legislative  authoriza- 
tion, to  grade  and  pave   the  streets  of  the  city,  we  are,  also,  of  the  t /»  Jr     ^-^^*-d 
opinion,  that  the  corporation  had  aiitliority  to  regrade  and  pave  Jeffer-  ^ 

son  street,  or  any  otlier  street,  whenever  the  municipality  might  have 
deemed  such  an  improvement  useful  to  the  local  public. 

The  power  of  the  Commonwealth  over  the  streets,  as  well  as  over  the 
local  police,  having  been,  not  alienated,  but  delegated,  or  rather  de- 
ferred^ to  the  city  itself  it  was  not  material  to  tiie  legal  authority  of 
fhe  order  for  changing  tiie  grade  of  Jefferson  street,  that  such  a  change 
was,  in  fact,  necessary  for  draining  water  or  for  any  other  purpose. 
The  city  decided  that  it  was  proper — and  personal  inconvenience  or  I  Ca^Iw^  ^■^^ 
private  judgment,  however  repugnant  to  the  policy  of  re-grading,  could  i 
not  have  aflected  the  legal  validity  of  the  order. 

But  the  public  right  to  regulate  the  common  highwa3-s  of  the  city,  is, 
of  course,  not  arbitrary  and  unlimited  :  far  from  it.  Private  rights  must 
be  regarded.  The  public,  like  a  common  person,  must  so  use  its  owa 
as  not  to  injure  another's  property.  It  cannot  take  private  property 
for  public  use,  without  paying  a  just  equivalent ;  nor  can  it  disturb  any 
personal  right  of  enjoyment.  But,  without  touching  the  plaintilf's  lot, 
or  in  an}'  way  encroaching  upon  it,  or  interfering  with  any  prescriptive 
right,  to  light,  or  to  private  wa}',  the  city  had  as  clear  and  perfect  ou- 
thorit}'  to  raise  its  street  higher,  or  sink  it  lower,  than  the  level  of  his 
lot,  as  he  would  undoubtedl}'  have  had  to  elevate  or  sink  his  groUTid, 
without  touching  or  otherwise  injuring  or  interfering  with  the  public 
street. 

On  the  trial  of  the  case,  there  was  no  evidence  tending,  in  an}-  de- 
gree, to  show,  that  the  plaintiff's  lot  had  been  intruded  on  or  touched; 
or  that  the  elevation  in  the  grade  of  the  street  caused  water  to  run  or 
remain  upon  it,  or  rendered  it  less  salubrious,  or  divested  him  of  an}'  I 
vested  right,  or  unjustly  obstructed  the  enjoyment  of  any  such  right ; 
and  mere  inconvenience,  to  which,  in  his  opinion  or  in  fact,  a  public 
improvement  in  his  city  may  have  subjected  him,  is  not  sufficient  joer  se 
to  entitle  him  to  damages.  Every  citizen  takes  and  holds  private  prop- 
erty in  land  subject  to  the  paramount  puldic  rights,  and  to  the  contin- 
gency of  adventitious  enhancement  or  diminution  in  value,  resulting 
from  the  exercise  of  the  public  power  for  the  common  good,  in  any 
manner  which  shall  not  deprive  him  of  j^ropertg,  nor  disturb  him  in  the 
lawful  use  of  any  thing  which  should,  of  right,  be  his.  A  citizen  cannot 
be  compelled  to  pay  for  private  advantage  arising  from  the  location  of 
a  public  way  ;  nor,  —  unless  his  property  be  taken  or,  in  some  way,  en- 
croached on,  so  as  to  divest  him  of  some  exclusive  individual  right.  — 
can  he  be  entitled  to  damages  for  incidental  disadvantage.  If  the  city 
possess  power  to  shut  up  Jefferson  street,  and  should  exercise  it,  the 
recliision  would  subject  the  plaintiff,  and  others  also,  to  much  more  in- 
convenience and  actual  loss  than  any  which  could  have  been  occasioned 
by  the  elevation  of  the  grade :  l)ut.  —  the  power  conceded,  —  a  legal 
right  to  damages  for  the  total  obliteration  of  the  street  could  not  be 
maintained.     It  would  have  been  damnum  absque  injuria — loss,  not 


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554 


KEASY   V.    CITY    OF   LOUISVILLE. 


h\yf^ 


T^ 


injur}-  —  inconvenience,  not  wrong  —  to  wliicli  ever}-  citizen  must  sub- 
mit, and  to  something  like  whicli  eveiT  citizen  does  submit,  for  tlie 
public  good. 

As  to  the  legality  or  propriety-  of  some  of  the  modes  of  making  public 
improvements  in  the  cit\-  of  Louisville,  tliis  Court  has  no  right  to  give 
any  opinion  in  this  case.  The  means  employed  for  efFecting  an  allow- 
able  end  may  be  inappropriate,  or  even  unauthorized,  but  the  end  itself 
—  when  accomplished  —  is  not  therefore  the  less  unexceptionable. 
Jefferson  street  has  been  re-graded  —  by  what  instrumentality  is  not  here 
material ;  the  end  was  lawful ;  the  city  had  a  right  to  effect  it  in  some 
mode  ;  and  having  done  so,  without  injury  to  any  of  the  plaintiff's  private 
rights,  (as  we  are  bound  to  presume  from  this  record.)  he  has  no  legal 
title  to  demand  any  damages  for  an  accidental  consequence,  arising 
from  the  rightful  exercise  of  a  public  power,  without  an}-  tortious,  or 
negligent,  or  unjust  act  or  omission. 

We  have  not  said,  nor  can  we  say,  that  a  citizen  ma}-  not  be  entitled 
to  damages  for  a  deprivation  of  the  zcse  of  his  property  by  a  public  way 
which  may  not  take,  or  even  touch,  any  of  his  land.  But  the  case  in 
which  such  a  right  to  damages  might  be  recognised,  must  be  an 
extreme  and  peculiar  one.  And  this  is  not  such  an  one,  but  is  an  or- 
dinary case  occurring,  in  a  greater  or  less  degree,  frequent!.}-  —  almost 
constantly  ;  and  the  public  could  not  well  bear  the  heavy  and  vexatious 
burden  of  such  demands  as  would  forever  arise  from  such  cases,  were 
they  admitted  to  be  cases  of  private  injury,  for  which  an  action  could 
be  maintained.  Nor  could  individual  citizens  be  justly  subjected  to  the 
reciprocal  claims  of  the  public  against  them,  for  the  like  inconvenience 
arising  from  their  lawful  use  and  enjoyment  of  nothing  but  their  own 
private  property.  And  hence,  as  a  general  rule,  the  law  gives  no  dam- 
ages to  either  party,  when  there  has  been  no  tresjxiss,  nor  any  nuisance 
which  might  have  been  avoided  without  a  surrender  of  a  just  and  neces- 
«jary  right. 

If,  as  we  have  supposed  and  decided,  the  city  had  authority  to  change 
the  first  grade,  there  could  have  been  no  implied  agreement,  when  that 
was  fixed,  that  it  would  never  be  changed,  any  more  than  such  an 
agreement,  between  the  United  States  and  the  owners  of  land  on  the 
Cumberland  Road,  never  to  change  the  location  or  grade  of  that  national 
way,  could  be  deemed  as  having  been  implied. 

Wherefore,  it  seems  to  us,  that  the  plaintiff  altogether  failed  to  prove 
any  fact  from  which  the  jury  would  have  had  a  right  to  infer,  that  he 
had  a  legal  right  to  damages.  And  therefore,  it  is  our  opinion  that, 
however  unnecessary  or  inapi)ropriate  the  hypothetical  assumptions  of 
the  Court  may  be  deemed  to  have  been,  the  instruction  was  not  erro- 
neous to  the  plaintiff's  prejudice  —  and  the  judgment  consequently  must 
remain  unreversed.^  ^  ^  ^_ 

1  The  absence  of  municipal  liability  at  common  law,  in  cases  like  Keasyv.  Louisville, 
has  been  aflSrmed  by  the  courts  in  most  of  tiie  states.     (For  the  exceptional  decisions 


^      -^       -^      -^      ■'^WALDEON   V.    CITY   OF   HAVERHILL. 

^. y 

>1^ 


555 


WALDRON   V.    CITY  OF   HAVERHILL. 

1887.     143  Massachusetts,  582. 

Tort,  for  injuries  occasioned  to  the  plaintiff's  real  estate  by  reason 
of'tKToperation  of  a  stone-crusher  on  laud  of  the  defendant,  between 
August  1  and  October  21,  1884. 

At  the  trial  in  the  Superior  Court,  before  Mason,  J.,  it  was  admitted 
that  the  plaintiff,  during  the  time  alleged  in  his  declaration,  was  in 
the  occupation  and  possession  of  the  premises  described  therein;  and 
that,  during  said  time,  a  stone-crusher,  engine,  and  boiler,  all  of 
which  were  the  property  of  the  defendant,  were  pperated  under  the 
direction  of  one  Mansur,  who  was  the  superintendent  of  streets  of 
the  defendant  city,  for  the  purpose  of  crushing  rocks  and  stones  for 
the  city,  used,  when  so  crushed,  in  keeping  the  public  streets  in  the 
city  in  suitable  order  and  condition  for  travel.  The  stone-crusher 
was  situated  on  land  of  the  city  formerly  used  as  a  gravel  pit  for 
supplying  materials  to  be  used  in  repairing  said  streets  and  high- 
ways, and  was,  during  the  time  alleged  in  the  declaration,  used 
exclusively  in  the  preparation  of  materials  to  be  used  in  keeping  said 
streets  and  highways  in  repair.  Said  land  was  a  short  distance  from 
the  plaintiff's  premises,  and,  by  the  operation  of  the  stone-crusher, 
stone  dust  arose  and  was  deposited  on  the  plaintiff's  premises,  which 
were  thereby  damaged  to  the  amount  of  $50.  The  men  who  operated 
the  stone-crusher  under  the  direction  of  Mansur  were  paid  therefor 
by  the  defendant. 

It  also  appeared  in  evidence,  that  the  plaintiff  occupied  his  said 
premises  before  the  stone-crusher  was  placed  upon  the  defendant's 
land;  that  the  ownership,  use,  and  operation  of  the  stone-crusher, 
engine,  and  boiler,  and  the  ownership  and  occupation  of  said  land  of 
the  defendant,  were  reasonably  necessary  for  the  keeping  of  said 
highways  irx  reasonable  order  and  repair  for  travel;  but  that  it  would f  |/<*'**'"*^ 
have  been  practicable,  by  the  erection  of  a  board  fence,  to  have  pre- 
vented  said  damage  to  the   plaintiff's   premises  by   said  dust.     It  I 

contra  in  Ohio,  see  McCombs  v.  Akron  Council,  1 5  Ohio,  474  ;  s.  c.  1 8  Ohio,  229  ;  Crawford 
V.  Village  of  Delaware.  7  Ohio  State,  459  ;  and  otlier  cases  reviewed  iu  Lewis  on  Eminent 
Domain,  s.  98.)  2  Dillon,  Mun.  Corp.,  4th  ed.,  s.  990.  Statutes,  however,  have  been 
enacted  iu  some  states  giving  compensation  for  damages  to  abutting  property  by  change 
of  grade.  These  statutes  and  the  decisions  thereunder  are  reviewed  in  Lewis  on  Emi- 
nent Domain,  ss.  207-218;  and  late  decisions  are  cfdlected  iu  G  Lewis,  Am.  R.  R.  & 
Corp.  Reports,  p.  257,  note.  Some  modern  constitutions  provide  that  comj)ensation 
shall  be  made,  not  only  for  property  taken  for  public  use,  but  also  for  property  damaged 
or  injured.  Under  such  provisions  it  has  been  held  that  the  abutting  owuer  may  recover 
for  damage  to  liis  property  by  a  change  in  the  grade  of  the  street.  See  2  Lewis,  Am. 
R.  R.  &  Corp  Rep.  p.  435,  note;  6  Ibid.,  p.  257,  note;  aud  compare  2  Dillon,  Mua 
Corp..  4th  ed.,  ss.  995  a,  995  b,  and  995c.  —  Ed. 


■MO 


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^.^ 


556  WALDRON   V.    CITY    OF    HAVERHILL. 

further  appeared  that  the  mayor  of  the  city,  who  was  chairman  of 
the  couimiLtee  on  public  streets,  on  two  occasions  during  the  time 
alleged,  was  on  the  defendant's  land. 

The  material  provisions  of  the  city  charter  and  ordinances,  which 
were  introduced  in  evidence,  appear  in  the  opinion. 

The  judge  ruled,  as  matter  of  law,  that  the  plaintiff  was  not  entitled 
to  recover;  and  directed  the  jury  to  return  a  verdict  for  the  defendant. 
The  plaintiff  alleged  exceptions. 

B.  B.  Jones,  for  the  plaintiff. 
J.  J.   Winn,  for  the  defendant. 

C.  Allen,  J.  If  a  city  or  town,  instead  of  leaving  the  duty  oi 
keeping  the  highways  in  repair  to  be  performed  by  the  officers,  and 
in  the  methods  provided  by  the  general  laws,  assumes  to  perform  it 
by  means  of  agents  whom  it  may  direct  and  control,  it  may  be  held 
responsible  for  the  acts  of  those  agents.  The  chief  grounds  of  a 
town's  exemption  from  responsibility  for  the  acts  of  surveyors  of 
highways,  as  stated  in  Walcott  v.  Sivampscott^  1  Allen,  101,  and  in 
later  cases,  are,  that  thefr  jx^vers  and  duties  are  prescribed  and  reg- 
ulated by  statute,  and  that,  in  the  performance  of  these  duties,  they 
are  independent  of  the  town,  and  cannot  be  directed,  or  controlled, 
or  removed  from  office  by  the  town,  and  are  not  amenable  to  it  for 
the  manner  in  which  they  discharge  the  trust  reposed  in  them  by  law; 
nor  can  the  town  exercise  any  right  of  selecting  the  servants  or  agents 
by  whom  surveyors  shall  perform  their  work.  These  reasons  are  not_ 
applicable  to  a  case  where  a  town  performs  the  work  by  means  of 
agents  of  its  own.  Haichs  v.  Cliarlemont,  107  Mass.  414.  Dea7ie 
'•f.  Randolph,  132  Mass.  475.  Sullivan  v.  Holyoke,  135  Mass.  273. 
Tindley  v.  Salem.,  137  Mass.  171. 

The  present  case  falls  within  the  latter  class.     By  the  city  charter, 
the  administration  of  all  the  fiscal,  prudential,  and  municipal  affairs 
y     A  of  the  city  of  Haverhill  is  vested  in  the  city  council.     By  the  city 

"T^rri  ordinances,  a  superintendent  of  highways,  removable  at  the  pleasure  of 
:^^^^**^^^  j  the  city  council,  is  to  be  chosen.  He  is  to  act  under  the  direction 
UJVvN>»^  -j  ^^^  committee  on  streets,  ways,  and  sewers,  which  is  a  committee 
of  the  city  council.  Special  provisions  show  more  in  detail  his  sub- 
ordination to  the  city  council,  and  to  its  committee.  The  work 
which  caused  the  injury  to  the  plaintiff's  property  was  done  on  land 
of  the  city,  which  land  for  a  period  of  nearly  three  months  was  used 
exclusively  for  the  preparation  of  materials  for  repairing  the  streets 
and  highways  of  the  city.  There  is  nothing  to  show  that  this  use  of 
I  the  city's  land  was  unauthorized.  The  contrary  is  to  be  assumed, 
nj,.  •  Upon  all  the  facts  stated,  the  work  in  question  appears  to  have  been 
'^■^^  done  by  agents  of  the  city,  for  whose  acts  and  neglects  in  the  per- 
formance thereof  the  city  is  responsible. 

The  case  of  Barneij  v.  Lowell,  98  Mass.  570,  was  distinguished, 
on  grounds  equally  applicable  here,  in  Hawks  v.  Charlemont,  ubi 
supra,  by  Chief  Justice  Chapman,  who  took  part  in  the  decision  of 
both  cases.  Excej/tions  sustained. 


J^  W* 


V^' 


MILES   V.   CITY   OF   WORCESTER. 


557 


ir\ 


MILES  V.  CITY  OF  WORCESTER. 

1891.     154  Afass.  511.1 


Tort  for  damages  occasioned  hv  an  encroaclimont  upon  the  plaintiffs 
land  of  a  wall  erected  between  the  same  and  an  adjoiinnjj  lot  belonirinf* 
to  the  defendant  cit}'. 

There  was  evidence  that  about  the  year  1871,  the  city  built  a  wall 
on  the  south  side  of  its  high  school  lot  between  it  and  the  plaintiff's 
lot,  which  were  then  at  the  same  grade,  upon  a  line  mutually  agreed 
upon,  and  proceeded  to  fill  up  its  land  to  a  level  as  high  as  tlie  top 
of  the  wall,  or  even  higher ;  that  the  wall  since  it  was  built  had  been 
pressed  out  of  position  by  reason  of  the"  weight  of  the  filling  beliindlt, 
or  by  the  action  of  surface  water  or  frost,  so  that  for  nearly  or  quite  a 
foot  at  the  bottom  it  had  bulged  out  and  come  upon  the  plaintifY'sTan^  ; 
and  that  this  bulging  out  of  the  wall  had  increased  witiiin  six  years 
before  the  date  of  the  writ,  and  had  gradually  affected  the  plaintiff's 
estate. 

Tlie  judge  instructe'i  the  jury,  in  substance,  that  if  the  plaintiflT  hy 
reason  of  the  encroachment  of  the  wall  had  been  kept  out  of  posses- 
sion and  occupation  of  a  part  of  his  land,  and  if  within  six  years 
before  the  date  of  the  writ  the  city  had  allowed  or  suffered  the  wall 
to  be  pushed  and  crowded  upon  the  plaintiff's  land,  creating  a  nuisance 
thereto,  causing  him  special  and  peculiar  damage,  then  there  was  a 
liability  in  an  action  of  tort  as  for  a  nuisance,  no  other  objection  exist- 
ing to  a  recovery. 

Verdict  for  plaintiff.     Defendant  excepted. 

i<r~?*.  Gouldirig,  for  defendant,. 

W.  S.  B.  Hopkins  {F.  B.  Smith  with  him),  for  the  plaintiflT. 

Allen,  J.  It  is  obvious  that  the  defendant's  wall,  in  its  present 
position  upon  the  plaintiff's  land,  must  be  deemed  an  actionable  nui- 
sance, unless  the  defendant  can  claim  exemption  from  responsibilitj*  on 
some  special  ground.  Coclman  v.  JEvaiis,  7  Allen,  431.  Nichols  v. 
Boston,  98  Mass.  39,  43.  Fay  v.  Prentice,  1  C.  B.  828.  The 
defendant  suggests  that  it  is  not  liable,  because  the  wall  was  built  and 
maintained  solely  for  the  public  use,  and  with  the  sole  view  to  the  gen- 
eral benefit  and  under  the  requirement  of  general  laws  ;  and  that  the 
case  cannot  be  distinguished  in  principle  from  the  line  of  cases  begin- 
ning with  Hill  V.  Boston,  122  Mass.  34-1.  and  ending  with  Howard  \. 
Worcester,  153  Mass.  426.  We  are  not  aware,  however,  that  it  has 
ever  been  held  that  a  private  nuisance  to  property  can  be  justified  or 
excused  on  that  ground.  The  verdict  shows  a  continuous  occupation 
of  tlie  plaintifl''s  land  by  the  encroachment  of  the  defendant's  wall. 
Tiie_Question  of  negligence  in  the  building  of  the   wall  is  not  material.  I 

1  Statement  abridged.  —  Ed.  • 


/ 


558 


WILSON   V.   MITCHELL. 


The  erection  was  completed,  and  was  accepted  bj*  the  defendant,  and 
is  now  in  the  defendant's  sole  charge  ;  and  if  it  is  a  nuisance,  the  defend- 
ant is  responsible.  Staple  v.  Sprmg,  10  Mass.  72,  74.  Nichols  v. 
Boston^  98  Mass.  39.  Such  an  occupatioa  of  the  plaintiff's  land  can- 
not be  excused  for  the  reasons  assigned.  A  city  cannot  enlarge  its 
^^^TWft  *^\  school  grounds  b}'  taking  in  the  land  of  an  adjoining  owner  b}'  means 
of  a  wall  or  fence.  The  public  use  and  the  general  benefit  will  not 
justif}'  such  a  nuisance  to  the  propert}'  of  another.  If  more  land  is 
*  needed,  it  must  be  taken  in  the  regular  way,  and  compensation  paid, 
but  if,  b}-  the  action  of  the  elements  or  otherwise,  without  the  plainliffs 
fault,  the  defendant's  wall  comes  upon  the  plaintiff's  land  and  con- 
tinues there,  it  becomes  a  nuisance  for  which  the  defendant  is  responsi- 
ble ;  and  so  are  the  authorities.  Gorham  v.  Gross,  125  Mass.  232, 
239.  Kliron  v.  Brock,  144  Mass.  516.  Eastman  v.  Meredith,  36  N. 
H.  284,  296.  Hay  v.  Cohoes  Go.  2  Comst.  159.  Tremain  v.  Cohoes 
Co.  2  Comst.  163.  Weet  v.  BrockpoH,  16  N.  Y.  161,  172,  note.  St. 
Peter  v.  Denison,  58  N.  Y.  416,  421.  Mayor  &  City  Council  of 
Cionherland  v.  Willison,  50  Md.  138.  Harper  v.  Milwaukee,  30  Wis. 
365.  Pumpelly  v.  Greoi  Bay  Co.  13  Wall.  166,  181.  Dillon  Mun. 
Corp.  §  985. 

The  case  is  distinguishable  from  Middlesex  Co.  v  McCue,  149  Mass. 
103,  where  soil  from  the  defendant's  land  upon  a  hillside  was  washed 
into  the  plaintiff's  mill-pond  by  the  rains,  when  the  defendant  had  built 
no  artificial  structure,  and  had  done  nothing  more  than  to  cultivate  his 
land  in  the  ordinary  way.  Exceptions  overruled. 


V" 


/u. 


1903.     17  S.  D.  515. 


X 

'U 


WILSON    V.  MITCHELL.    '^  p^ 

Corson,  J.^    The  plaintiff  brought  this  action  to  recover  of  the  de-A^^ 

fendant  the  sum  of  $694,  the  alleged  value  of  the  use  and  occupation  i^ 

of  a  certain  city  lot,  with  an  artesian  well  thereon,  belonging  to  the  ''"^ 

plaintiff,  for  a  period  of  about  seven  years.    A  verdict  was  directed  in  ^^ 

favor  of  the  defendant,  and  the  plaintiff  has  appealed.  'o  i 

At  the  close  of  all  the  evidence  the  defendant  moved  the  court  to^^^ 

direct  a  verdict  for  the  defendant  upon  the  ground  that  the  undisputed  Cct 

evidence  showed  that  the  city  did  not  sink  a  well  upon  the  lot  in  ques-  L 

tion,  and  did  not  ratify  the  act  of  the  superintendent  of  the  water-  ^^ 

works  in  connecting  the  city  mains  with  the  well,  and  that  there  was  f^ 

no  evidence  in  the  case  tending  to  prove  that  the  city,  at  the  time  that  q  (^ 
it  allowed  the  bill  of  the  city  plumber  for  connecting  the  city  water-  ^ 
works  with  the  well,  knew  that  the  well  in  question  was  upon  the  lot     ^ 

^  Arguments  omitted.  —  Ed. 


^^^^-^^;;>gi 


WILSON   V.   MITCHELL.  559 

of  the  plaintiff,  and  not  upon  the  city  property.      The   motion  was 
granted,  and  the  motion  for  a  new  trial  deniad. 

It  appears  from  the  evidence  that  in  1893  the  plaintiff  was  the  owner 
of  the  city  lot,  and  artesian  well  thereon,  and  that  in  the  latter  part  of    v'^--^.  •f>-^ 
that  year  the  superintendent  of  the  waterworks  of  said  city  caused  a    v^J^>e^'^•-'r■^^ 
connection  to  be  made  between  the  city  mains  and  the  said  artesian    /5_^,jii~'r- 
well  without  any  contract  between  the  city  and  the  plaintiff,  and  with- 
out the  plaintiff's  consent.     There  was  no  evidence,  however,  tending 
tu  prove  that  the  municipalit}*  had  any  knowledge  or  notice  that  the 
well  belonging  to  the  plaintiff  had  been  connected  with  the  city  water- 
works, other  than  the  fact  that  the  same  had  been  connected  by  the  u.^=^  4AC.<v< 
city  plumber  by  order  of  the  superintendent  of  the  waterworks,   and    niu-.^^v^'J^^ 
the  fact  of  the  allowance  by  the  city  of  the  plumber's  bill  for  doing    '»x:,^>U^s 
the  work  and  furnishing  the  material  therefor  ;  but  it  was  not  shown     U^^t.,,,,,^^^-*  ^ 
that  either  the  superintendent  of  the  waterworks,  the  city  plumber  or  'Lv«-c^vvvn^ 
the  city  council  knew  that  the  well  was  upon  plaintiff's  property.    The     i^^y-Ud^  **» 
liability  of  the  city  is  sought  to  be  maintained  upon  the  ground  that         VZn  Q^ 
the  plaintiff's  well  was  connected  with  the  city  waterworks  under  the 
direction  of  the  superintendent  of  the  same,  and  that  the  city  used  the    ^ 
water  for  the  period  Tobove  stated.     It  is  also  claimed  by  the  appellant  \  \^o*-^'**'^ 
that  the  city  is  liable,  the  same  as  an  individual,  upon  an  implied  con-  I  );L»Ji^^  ^ 
tract,  and,  therefore,  it  being  shown  that  the  city  has  used  tlie  lot  ami  I   cs^-^"^^ 
well  thereon  during  the  time  stated,  the  plaintiff  is  entitled  to  recover  '      f^pCT 
for  the  use  and  occupation  of  the  same.     It  is  undoubtedly  true  that 
under  the  modern  decisions  a  municipal  corporation  may  be  liable  upon 
an  implied  contract,  if  an  express  contract  would  be  within  the  powers 
of  the  municipality,  delegated  to  it,  and  the  city  has  ratified  the  act  of 
its  officers ;  but  the  claim  that  the  city  ratified  the  act  of  the  superin-     -  , . 

tendent  of  the  waterworks  by  allowing  the  plumber's  bill  for  making        /V<?^^-nf 
the  connection  is  not  tenable.     There  is  nothing  in  the  bill  itself  indi- 
cating that  the  work  was  for  connecting  the  waterworks  with  the  well 
upon  the  plaintiff's  lot.     The  item  in  the  bill  claimed  to  have  consti- 
tuted the  ratification  of  the  act  of  the  superintendent  of  the  waterworks    -v        / 1       [ 
reads  as  follows:   "To  11  days  work  for  city  plumber  in  connecting  I  Kcr-*         ^ 
new  well,  with  mains,  S44  ;  "  and  for  37  days  work  assisting  same,  834.  1  \pj      ^  { 
Only  one  of  the  members  of  the  cit}'^  council  was  called  as  a  witness, 
and  he  testified  that,  as  a  member  of  the  finance  and  waterworks  com- 
mittee, he  approved  the  bill,  but  at  the  time  he  approved  it  he  sup- 
posed the  work  was  done  upon  a  city  lot.     It  is  well  settled  that  an  I   Ko'vMArAf* 
act  of  an  agent  is  not  ratified  unless  the  principal  is  fully  advised  of  I     r-J.^  Jr 
all  the  facts  connected  with  the  act  it  is  claimed  he  ratifies.     SJiidl  v.  I    ^"^^^^ 
Neio  Birdsall  Co.,  15  S.  D.  8,  86  N.  W.  654.     It  not  being  aflarma-       XK^'^'^^^ 
tivel}'  shown  that  either  the  superintendent  of  the  waterworks  or  any 
member  of  the  city  council  had  any  knowledge  that  the  city  water- 
works had  been  connected  with  the  well  belonging  to   the  plaintiff, 
there  was  no  ratification  that  can  bind  the  city. 

But  there  is  a  more  satisfactory  ground  for  denying  the  city's  lia- 


560 


WILSON   V.   MITCHELL. 


S'N-p 


>A  *    '  I 


}jtrQ^ 


bility.  The  municipality  had  no  authority  to  connect  its  waterworks 
system  with  the  well  of  the  plaintiff  without  his  consent,  and  the  city 
officer,  therefore,  had  no  authority  to  invade  plaintiff's  property,  and 
the  city  could  not  legally  ratify  the  act  of  its  agent  in  making  such 
connection.  As  the  city  had  no  power  to  enter  upon  private  property 
and  appropriate  the  same  to  public  use,  except  in  theitrrcrmeT  providecl 
By  law  for  coiulemnation  of  such  property,  the  defendant  did  not  have 
the  power  to  enter  upon  the  lot  of  the  plaintiff  and  use  the  same  for* 
public  purposes  without  his  consent.  The  acts  of  the  officers  of  a" 
municipality  cannot  bind  it  unless  they  are  acting  within  the  scope  of 
the  powers  expressly  granted  by  its  charter  or  necessarily  incident 
thereto,  or  indispensable  to  the  proper  exercise  of  the  powers  granted. 
Sioicx  Falls  v.  Kirby,  6  S.  D.  62,  60  N.  W.  156,  25  L.  R.  A.  621. 

It  is  contended  on  the  part  of  the  defendant  that  it  was  competent 
for  the  plaintiff  to  waive  the  tort,  and  sue  upon  the  implied  contract 
for  the  use  and  occupation  of  the  premises,  and  recover  the  value  of 
such  use  and  occupation.  This  right  might  be  exercised  in  the  case  of 
an  individual,  but  such  a  rule  has  no  application  to  the  case  of  a  mu- 
nicipal corporation,  as  the  powers  of  such  corporation  are  limited,  and 
it  cannot  exercise  such  as  are  not  expressly  granted,  or  necessarily 
incident  to  the  power  granted.  In  Roidand  v.  City  of  Gallatin,  75 
Mo.  134,  42  Am.  Rep.  395,  the  Supreme  Court  of  Missouri,  discussing 
a  similar  question,  says:  "Conceding  the  plaintiff's  claim  in  this  re- 
gard, and  the  finding  of  the  court  thereon  to  be  correct,  still  there  is 
no  authority  in  the  charter  of  the  city  of  Gallatin  or  elsewhere  for  the 
officer  of  the  city,  in  pursuance  of  an  ordinance  or  otherwise,  to  enter 
upon  private  property,  and  remove  earth  or  other  material  therefrom, 
or  in  any  other  manner  interfere  therewith,  for  the  purpose  of  improv- 
ing the  streets  of  said  city ;  and  the  city  cannot,  therefore,  be  held 
liable  for  the  acts  charged.  Tliomsony.  City  of  Boonville,  61  Mo.  283  ; 
Emit  V.  Same,  65  Mo.  620  [27  Am.  Rep.  299]."  In  that  case  the 
premises  of  the  plaintiff  were  entered  upon  by  the  street  commissioner 
of  the  city  under  the  verbal  direction  of  the  mayor.  But  as  we  have 
seen,  the  court  held  that  the  municipality  was  not  liable.  It  is  true 
that  was  an  action  of  trespass,  but  undoubtedly  the  same  rule  would 
have  been  held  had  the  plaintiff  waived  the  tort  and  sued  for  the  value 
of  the  material  taken  from  the  lot.  The  basis  of  the  action  would  have 
been  the  trespass  committed  by  the  street  commissioner.  So,  in  the  case 
at  bar,  the  trespass  of  the  superintendent  of  the  waterworks  in  connect- 
ing the  waterworks  system  with  the  well  of  the  plaintiff  is  the  basis  of 
this  action,  for  which  ti'cspass,  as  we  have  seen,  the  city  would  not  be 
liable.  AVaiving  the  tort,  therefore,  by  plaintiff,  and  seeking  to  recover 
upon  an  implied  contract,  does  not  change  the  rights  of  the  parties. 
As  bearing  upon  this  question,  see  Cavanagh  v.  Boston,  139  Mass.  426, 
52  Am.  Rep.  716;  Seelev..  Deering,  79  Me.  343,  10  Atl.  45,  1  Am. 
St.  Rep.  314;  Smith  v.  City  of  Rochester,  76  N.  Y.  506;  Morrison  Y. 


SALT   LAKE   CITY   V.   HOLLISTER.  561 

Citij  of  Latvrence,  98  Mass.  219  ;  Rowland  v.  City  of  Gallatin,  lb  Mo. 
134,  42  Am.  Rep.  395. 

We  are  clearly  of  the  opinion,  therefore,  that  the  plaintiff,  under 
the  evidence  in  this  case,  was  not  entitled  to  recover,  and  that  the 
court  below  rightly  directed  a  verdict  in  favor  of  the  defendant.  The 
judgment  of  the  circuit  court  and  the  order  denying  a  new  trial  are 
affirmed.^  _         ,^^ 


€^< 


v^ 


SALT   LAKE    CITY   v.   HOLLISTER. 

1886.     118  U.  S.  256.2 

Appeal  from  the  Supreme  Court  of  the  Territory  of  Utah. 

Suit  by  the  city,  against  the  U.  S.  collector  of  internal  revenue,  to 
recover  the  sum  of  812,057.75  illegally  exacted  by  him  for  a  special 
tax  upon  spirits  alleged  to  have  been  distilled  b}-  the  city. 

The  answer  of  the  d>?fendant  alleges  that  the  Lax  was  legally  assessed, 
and  avers  that  the  plaintiff,  during  all  the  time  for  which  said  assess- 
ment was  made,  was  actually  engaged  in  distilling,  producing,  and  deal- 
ing in,  as  distiller,  said  spirits  so  assessed,  and  said  assessment  of  said 
gallon  tax  was  made  upon  distilled  spirits  actually  produced  b}'  the 
plaintiff,  and  upon  which  plaintiff  had  not  paid  the  gallon  tax  required 
by  law,  said  spii'its  not  having  been  deposited  in  the  bonded  ware- 
bouse  of  the  United  States  by  the  plaintiff,  as  required  by  law,  but 
taken  from  said  distillery  by  the  plaintiff,  after  having  been  produced 
and  distilled  as  aforesaid,  and  sold  by  said  plaintiff,  and  the  proceeds 
of  said  sale  turned  into  the  treasury  of  the  plaintiff. 

The  answer  also  alleges  that  the  plaintiff,  from  March  2,  1867,  to 
Aug.  26,  1868,  was  distilling  and  producing  spirits,  and  receiving  and 
appropriating  the  benefit  arising  therefrom. 

The  answer  further  alleges  that  the  plaintiff  regularly  reported  and 
paid  to  the  collector  the  gallon  tax  due  upon  a  part  of  the  spirits  dis- 
tilled by  the  plaintiff,  but  that  the  plaintiff  neglected  to  report  all  of 
the  spirits  it  actuall}'  distilled,  and  that  the  tax  now  in  question  was 
assessed, upon  the  spirits  distilled  in  excess  of  the  amount  reported  by 
the  plaintiff. 

A  demurrer  to  the  answer  was  overruled,  and,  the  plaintiff  refusing 
to  plead  further,  judgment  was  renaerea  lor  the  defendant. 

Franklin  S.  Richards,  {Benjamin  Shetks,  and  J.  L.  Raiclins,  with 
Jiim),  for  plaintiff. 

/Solicitor  General,  for  defendants. 

1  See  Cunningham  v.  Seattle,  40  Wash.  59,  82  Pac.  143,  4  L.  R.  A.  N.  S.  629. 
^  Statement  abridged.  —  Ed. 


562 


SALT   LAKE   CITY   V.   HOLLISTER. 


Miller,  J.  [After  stating  the  case.]  It  will  be  perceived  that  this 
demurrer  admitted  that  the  plaintiff,  The  City  of  Salt  Lalie,  liod  l)een 
for  a  period  of  about  eighteen  months  engaged  in  the  business  ofdis- 
tilUng  anoTprodncing  spirits  and  selling  the  same,  and  placing  the  pro- 
ceeds omie"~sale  in  its  treasury-.  That  during  this  time  the  plaintiff 
made  regular  reports  as  to  the  quantity  produced  and  paid  the  tax  oa 
the  amounts  so  reported.  But  that  while  it  tluis  operated  said  distil- 
lery, it  failed  and  neglected  to  report  all  the  spirits  which  it  produced, 
and  the  tax  assessed  and  collected,  and  which  the  present  suit  is 
brought  to  recover  back,  was  for  the  spirits  of  which  no  report  was 
made. 

The  Commissioner  of  Internal  Revenue  having  assessed  plaintiff  for 
these  distilled  spirits  and  placed  the  assessment  in  the  hands  of  defend- 
ant, he,  as  a  means  of  collecting  the  tax,  did  threaten  to  seize  and  sell 
propert}'  of  plaintiff,  whereupon  plaintiff  paid  the  sum  mentioned. 

It  would  seem  tliat  this  unqualified  admission  tliat  the  city  was 
actually  engaged  in  the  business  of  distilling  spirits  liable  to  taxation, 
and  replenishing  her  treasury  with  the  profits  arising  from  the  opera- 
tion, ought  to  be  a  justification  of  the  officer  who  collected  the  tax  due 
for  the  spirits  so  distilled.  And  this  argument  is  all  the  stronger, 
since  the  city  acknowledged  its  liabilitj'  as  a  distiller  by  paying  volun- 
tarily the  tax  due  on  the  larger  part  of  the  spirits  produced. 

But  while  the  city  does  not  deny  the  actual  fact  of  distillation,  and 
of  fraudulent  returns  by  it,  it  denies  the  whole  affair  by  argument.  It 
says,  that,  though  it  is  very  true  the  city  did  distil  spirits,  did  sell  them, 
and  did  receive  the  money  into  its  treasury,  it  cannot  be  held  liable  for 
this  because  it  had  no  legal  power  to  do  so.  Its  want  of  corporate 
authority  to  engage  in  distilling  is  to  be  received  as  conclusive  evi- 
dence that  it  did  not  do  so,  while  bj-  the  pleading  it  is  admitted  that  it 
did.  Because  there  was  no  statute  which  authorized  it  as  a  cit}^  of 
Utah  to  distil  spirits,  it  could  engage  in  this  profitable  business  to  any 
extent,  without  paying  the  taxes  which  the  laws  of  the  United  States 
require  of  every  one  else  who  did  the  same  thing. 

If  the  Territory  of  Utah  had  added  to  its  other  corporate  powera 
that  of  making  and  selling  distilled  spirits,  then  the  cit}'  would  be 
liable  to  the  tax,  but,  because  it  had  no  such  power  b}-  law,  it  could 
do  it  without  any  liability  for  the  tax  to  the  United  States  or  to  any 
one  else. 

It  would  be  a  fine  thing,  if  this  argument  is  good,  for  all  distillers  to 
organize  into  milling  corporations  to  make  flour,  and  proceed  to  the 
more  profitable  business  of  distilling  spirits,  which  would  be  unauthor- 
ized by  their  charters  or  articles  of  incorporation  ;  for  they  would  thus 
escape  taxation  and  ruin  all  competitors. 

It  is  said  that  the  acts  done  are  not  the  acts  of  the  city,  but  of  its 
oflicers  or  agents  who  undertook  to  do  them  in  its  name.  This  would 
be  a  pleasant  farce  to  be  enacted  by  irresponsible  parties,  who  give  no 
bond,  who  have  no  property  to  respond  to  civil  or  criminal  suits,  who 


SALT   LAKE   CITY   V.    HOLLISTER. 


563 


make  no  profit  out  of  it,  while  tlie  cit}'  grows  rich  in  the  performance. 
It  is  to  be  taken  as  a  fair  inference  on  this  demurrer  tliat  all  that  the 
cit}'  inight  have  done  was  done  in  establishing  this  business.  The  offi- 
cers who,  it  is  said,  did  this  thing,  must  be  supposed  to  have  been 
properly  appointed  or  elected.  Resolutions  or  ordinances  of  the  govern- 
ing bodv  of  the  city  directnig  the  establishment  of  the  distillery  and 
furnishing  monej'  to  buy  the  plant,  must  be  supposed  to  have  been 
passed  in  the  usual  mode.  Everything  must  have  been  done  under  the 
same  rules  and  by  the  same  men  as  if  it  were  a  hospital  or  a  town  hall. 
If  the  demurrer  had  not  admitted  this,  it  could  no  doubt  have  been 
proved  on  an  issue  denying  it. 

But  the  argument  is  unsound  that  whatever  is  done  b^^  a  corporation 
in  excess  of  the  corporate  powers,  as  defined  by  its  charter,  is  as  though 
it  was  not  done  at  all.  A  railroad  companj'  authorized  to  acquire  a 
righc  of  way  by  such  exercise  of  the  right  of  eminent  domain  as  the  law 
prescribes,  wiiich  undertakes  to  and  does  seize  upon  and  invade,  hy  its 
officers  and  servants,  the  land  of  a  citizen,  makes  no  compensation, 
and  takes  no  steps  for  the  appropiiation  of  it,  is  a  naked  trespasser, 
and  can  be  made  responsible  for  the  tort.  It  had  no  authority  to  take 
the  man's  land  or  to  mvade  his  premises.  But  if  the  governing  board 
had  directed  the  ace,  the  corporation  could  be  sued  for  the  tort,  in  an 
action  of  ejectment,  or  in  trespass,  or  on  an  imphed  assumpsit  for  the 
value  of  the  land.  A  plea  of  ultra  vires,  in  this  case,  would  be  no 
defence. 

The  truth  is,  that,  with  the  great  increase  in  corporations  in  very 
recent  times,  and  in  their  extension  to  nearly  all  the  business  trans- 
actions of  life,  it  has  been  found  necessary  to  hold  them  responsible 
for  acts  not  strictlj-  within  their  corj^orate  powers,  but  done  in  their 
corporate  name,  and  by  corporation  officers  who  were  competent  to 
exercise  all  the  corporate  powers.  Wlien  such  acts  are  not  founded 
on  contract,  but  are  arbitrary  exercises  of  power  in  the  nature  of  torts, 
or  are  quasi-criminal,  the  corporation  ma}'  be  held  to  a  pecuniary  re* 
Bponsibilit}'  for  them  to  the  party  injured. 

This  doctrine  was  announced  b}-  this  court  nearly  thirty  years  ago  in 
a  carefully  prepared  opinion  by  Mr.  Justice  Campbell  in  the  case  of 
Philadelpkia,  Wilndngton  and  Baltimore  Railroad  Co.  v.  Quigley^ 
21  How.  202. 

[The  learned  Judge  then  stated  the  last  mentioned  case ;  and  also 
referred  to  Reed  v.  Home  Savings  Bank,  130  Mass.  443,  445,  and 
Copleij  V.  Grover  and  Baker  /Sewing  Machine  Co.,  2  "Woods,  494,  in 
which  the  defendant  corporations  were  held  liable  to  actions  for  mali- 
cious prosecution.] 

It  is  said  that  Salt  Lake  City,  being  a  municipal  corporation,  is  not 
liable  for  tortious  actions  of  its  officers. 

While  it  may  be  true  that  the  rule  we  have  been  discussing  max  re- 
quire a  more  careful  scrutiny  in  its  application  to  this  class  of  corpo- 
rations than  to  corporations  for  pecuniary  profit,  we  do  not  agree  that 


564  CITY  OF  HENDEESON  V.   CLAYTON. 


7S2a4^' 


they  are  wholly  exempt  from  liability  for  wrongful  acts  done,  with  all 


the  evidences  of  their  being  acts  of  the  corporation,  to  the  injury  of 
thers,  or  in  evasion  of  legal  obligations  to  the  State  or  the  public.  A 
municipal  corporation  cannot,  any  more  than  any  other  corporation  or 
private  person,  escape  the  taxes  due  on  its  property,  whether  acquired 
legally  or  illegally,  and  it  cannot  make  its  want  of  legal  authority  to 
engage  in  a  particular  transaction  or  business  a  shelter  from  the  taxation 
*  imposed  by  the  Government  on  such  business  or  transaction  by  whom- 
soever conducted.     See  McCready  v.  Guardians  of  the  Poor  of  Phila- 

rl/Kt^JxtsA    ^^h^^^^^^  9  S.  &  R.  94. 

^^        It  remains  to  be  observed,  that  the  question  of  the  liability  of  corpo- 

'^^TjU  rations  on  contracts  which  the  law  does  not  authorize  them  to  make, 

and  which  are  wholly  beyond  the  scope  of  their  powers,  is  governed  by 

K„  X         a  different  principle.     Here  the  party  dealing  with  the  corporation  is 

'   '  under  no  obligation  to  enter  into  the  contract.     No  force,  or  restraint, 

r         j^^or  fraud  is  practised  on  him.     The  powers  of  these  corporations  are 

Wk/*^b      .    matters  of  public  law  open  to  his  examination,  and  he  may  and  must 

Y/i/JJi^        judge  for  himself  as  to  the  power  of  the  corporation  to  bind  itself  by 

1      "^   '        the  proposed  agreement.     It  is  to  this  class  of  cases  that  most  of  the 

p^  authorities  cited  by  appellants  belong  — ■  cases  where  corporations  have 

been  sued  on  contracts  which  they  have  successfully  resisted  because 

they  were  ultra  vires. 

But,  even  in  this  class  of  cases,  the  courts  have  gone  a  long  way  to 
enable  parties  who  had  parted  with  property  or  money  on  the  faith  of 
such  contracts,  to  obtain  justice  by  recovery  of  the  property  or  the 
Vy^^  /  money  specificall3%  or  as  money  had  and  received  to  plaintiff's  use. 
^,-.0CX.  I  Thomas  v.  Railroad  Co.,  101  U.  S.  71  ;  Louisiana^y.  Wood^  102. 
^j^  U.  S.  294;   Chapman  v.  Dovglass  County,  lOTursTsis,  355. 

Jl^         """"The  judgment  of  the  Supreme  Court  of  Utah  Territory  is 


>>J&v-. 


CITY  OF  HENDERSON  v.   CLAYTON. 


1900.    57  S.  W.  1.  n&Sz^ 

HoBsox,  J.^  Appellee  filed  suit  to  recover  damages  for  the  location  ^'h 
of  its  pest  house  within  one  mile  of  the  corporate  limits  of  the  city  of  *" 
Henderson,  by  reason  of  which  she  and  her  family  took  the  smallpox.  ^' 
She  sought  to  recover  against  the  city  and  the  municipal  officers  ''K^ 
jointly.  This  is  the  second  appeal  of  the  case.  The  opinion  on  the  Hw, 
former  appeal  will  be  found  in  Clayton  v.  City  of  Hoiderson,  44  S.  W.  a 
667.  On  that  appeal  it  was  held  that  she  could  not  sue  the  city  and  f*o- 
its  officers  jointly,  and  on  return  of  the  case  she  elected  to  prosecute    ^^v^, 

1  Part  of  the  opinion  only  is  given.  —  Ed.  5_ 


CITY   OF   HENDERSON   V.   CLAYTON.  565 

the  action  against  the  city  alone.     After  this  a  trial  was  had,  resulting 

in  a  verdict  and  judgment  against  the  city  for  §2,775.     From  this , 

judgment  the  city  prosecutes  the  appeal  now  before  us.     Section  3909,    ^^^L*X~- 
Ky.  St.,  is  as  follows:  "It  shall  not  be  lawful  to  locate  or  maintain 
any  pest  house  or  other  place  intended  for  the  treatment  of  eruptive      j,,,,^,,^-^^ 
diseases,  or  diseases  which  are  contagious  or  infectious,  within  the  cor-       ^^   » 
porate  limits  of  any  incorporated  city  or  town,  or  within  a  distance  of     ^^ 
one  mile  of  the  boundary  line  thereof.     Any  officer  of  any  city  or  town,  >•  ^^^  ^ 
or  other  person,  who  shall  violate  the  provisions  of  this  act,  or  in  any   ^\jfAj,j^ 
wise  aid  or  abet  therein,  shall  be  deemed  guilty  of  a  misdemeanor,  and     ^^"^^^"^"^ 
upon  conviction  thereof  in^ny  court  of  competent  jurisdiction,  >hnll  be   -^  Vf'w^ 
flnemiot  less  than  five  hundred  dollars  nor  more  than  one  thousand  ^^ 

dollars,  and  be  liable  in  damages  to  any  person  injured  thereby,  and        ^ 
if  willfully  done,  such  person  or  his  heirs  or  representatives  may  re-        '  . 

cover  punitive  damages."  As  the  city  was  authorized  by  law  to  estab-  ^jO^ 
lish  and  maintain  a  pest  house,  the  acts  of  its  officers  in  establishing  -i^^JLi 
and  maintaining  the  pest  house  in  question  were  its  acts,  and  it  is  re-      .  .*- 

sponsible  to  the  party  aggrieved,  as  well  as  its  agent  through  whose       lJ-^* 
instrumentality  it  acted.     This  was  expressly  determined  on  the  former 
appeal. 

It  will  be  obsers-^ed  that,  while  the  statute  imposes  a  duty  upon  the 
city,  it  provides  a  remedy  by  action  only  against  the  city  officers  in 
behalf  of  the  person  injured.  While  this  court  on  the  former  appeal 
said  that  a  common-law  cause  of  action  was  stated  against  the  city,  it 
was  not  meant  that  the  petition  stated  only  a  common-law  cause  of  ac- 
tion independent  of  the  statute.  We  think  the  averments  sufficient  to 
constitute  a  cause  of  action  indef)endent  of  the  statute,  and  also  a 
cause  of  action,  which,  according  to  the  common  law,  arises  from  the 
violation  of  a  statute  enacted  for  the  protection  of  the  citizen.  From 
time  immemorial,  where  a  statutory  duty  for  the  protection  of  individ- 
uals had  been  violated,  an  action  at  common  law  might  be  maintained. 
The  common-law  rule  referred  to  is  thus  stated  in  Com.  Dig.  tit.  "Ac-  ,  JLjum 
tion  upon  Statutes":  ''In  every  case  where  a  statute  enacts  or  pro-/ ^^^ 
hibits  a  thing  for  the  benefit  of  a  person,  he  shall  have  a  remedy  upon 
the  same  statute  for  the  thing  enacted  for  his  advantage,  or  for  the 
recompense  of  a  wrong  done  to  him  contrary  to  the  said  law."  Another 
common-law  authority  thus  states  the  rule  :  "  Whenever  an  act  of  par- 
liament doth  prohibit  anything,  the  party  grieved  shall  have  an  action, 
and  the  offender  shall  be  punished  at  the  king's  suit.  It  is  written  in 
the  hornbook  of  the  law  that  the  public  and  a  party  particularly  ag- 
grieved may  each  have  a  distinct  but  concurrent  remedy  for  an  act 
which  happens  to  be  both  a  public  and  a  private  wrong."  End.  Interp. 
St.  §  463.  The  same  common-law  rule  is  laid  down  in  Bish.  Noncont. 
Law,  §  133,  and  in  Cooley,  Torts,  p.  658.  It  is  also  recognized  in  sec- 
tion 466,  Ky.  St.  :  "A  person  injured  by  the  violation  of  any  statute 
may  recover  from  the  offender  such  damage  as  he  may  sustain  by 
reason  of  the  violation,  although  a  penalty  or  forfeiture  for  such  vio- 


566  THOMPSON   NAVIGATION   CO.    V.   CITY   OF   CHICAGO. 

lation  be  thereby  imposed."  "While  the  statute  involved  here  imposes 
on  the  municipal  officers  a  criminal  responsibility,  and  also  makes  them 
liable  civilly  to  the  party  aggrieved  for  the  injury  or  for  punitive  dam- 
ages, if  it  is  -willfully  done,  it  is  silent  as  to  a  remedy  against  the  mu- 
nicipality, and,  nothing  being  provided  as  to  the  remedy  against  it  for 
its  doing  what  the  statute  makes  unlawful,  the  common-law  rule  applies  ; 
for  the  wrong  is  the  act  of  the  city  whose  orders  the  municipal  otficers 
execute,  and  as  the  remedy  against  the  officers  might  in  many  cases, 
from  insolvency  and  the  like,  be  wholly  inadequate,  this  provision  of  the 
statute,  nothing  to  the  contrary  appearing,  must  be  regarded  as  merely 
cumulative.  The  city  of  Henderson  was  therefore  liable  to  appellee 
for  such  damages  as  she  sustainednDy  reason  of  the  city's  violation 
of  section  3909,  Ky.  St.,  above  quoted,  although  that  statute  did  not  in 
terms  impose  this  liability  on  it,  and  the  court  below  properly  so  in- 
structed the  jury. 


Judgment  affirmed. 


^^^^ 


THOMPSON   NAVIGATION   CO.    v.    CITY  OF  iamC5lG0.N^O^ 

1897,  79  Fee?.  984.  t   *On^" 

Grosscup,  J.     This   is    a   libel    in^persoiimn    against   the   city  ofi      ''  ^ 
Chicago,  growing  out  of  a  collision  between  the  fire  tug  Yo  Semite,       "^_ 
owned  hy  that  cit3',  and  the  propeller  City  of  Berlin,  owned  bj-  the  libel-  C^ 
lant.    The  collision  occurred  in  the  Chicago  river,  near  the  point  where  it    L/^ 
branches  into  its  south  and  north  forks.     At  the  time  of  the  collision,      ^t? 


the  Cit}'  of  Berlin  was  lying  in  winter  quarters.     The  circumstances      %\1 
of  the  collision  were  such  that  had  the  tug  been  owned   by  private   l<^    > 
owners,  and  engaged  in  a  private  enterprise,  there  could  be  no  doubt      Jp/ 
of  her  liability  for  the  injur}-  done.    In  saying  this,  I  keep  fullj'  in  view  ^. 
the  fact  that  fire  tugs  are  expected  by  the  nature  of  their  duties  to 
make  haste.     The  haste  in  this  case  was  blind  and  thoughtless,  result- 
ing in  a  dela}'  to  the  tug,  as  well  as  injury  to  the  City  of  Berlin.     In- 
deed, counsel  for  th^city  do  not  seriously  contest  the  fact  of  negliggace. 
But  the  fire  tug  was  at  the  time  of  the  collision  owned  by  the  city  of 
Chicago,  and  actually  engaged  in  one  of  the  liaMic  duties  that  Chicago, 
as  a  part  of  the  government,  undertakes.     Do  these  facts,  or  either  of 
them,  exempt  her,  or  the  city,  responding  in  her  behalf,  from  what 
would  otherwise  be  her  clear  liability  ? 

At  common  law,  one  injured  either  in  his  property  or  person  looks 
for  compensation  to  the  person  or  persons  causing  the  injury,  or  to  the 
master  or  principals  of  such  persons,  where  the  injury  was  done  within 
the  scope  of  their  agenc}'  or  service.  Injidmiralty^  the  rule  is  this : 
The  Yessel_j3ornmitting  the  unlawful  iniury  is  considered,  the  otfeuder, 


THOMPSON    NAVIGATION    CO.   V.    CITY   OF   CHICAGO. 


567 


and  the  owner  is  mulcted  to  the  extent  of  his  in-terest  in  the  vessel ; 
not  because  he  sliinds  in  the  relation  of  principal  or  master  to  the  crew, 
bnt  alone  because  of  the  fact  of  ownership.  Thus,  under  laws  pre- 
ventive of  piracy  or  smuggling,  the  vessel  ma}'  be  seized,  condemned, 
and  sold,  notwithstanding  the  crew  committing  the  unlawful  acts  were 
engaged  by  the  owner  for  a  lawful  enterprise  only,  and  were,  in  the 
commission  of  the  unlawful  acts,  wholly  outside  the  scope  of  their  en- 
gagement. U.  S.  V.  The  JSLileh  Adhd.,  2  How.  210.  Commenting 
upon  this  apparent  anomaly  of  maritime  jurisprudence,  and  showing 
that  the  doctrines  advanced  in  the  case  then  under  consideration  were 
not  different  from  those  prevailing  generallj'  in  maritime  law,  Mr.  Jus- 
tice Story,  at  page  234,  speaks  as  follows:  "  The  shi[)  is  also,  by  the 
general  maritime  law,  held  responsible  for  the  torts  and  misconduct  ot 
the  master  and  crew  thereof,  whether  arising  from  negligence  or  a 
wilful  disregard  of  dutj- ;  as,  for  example,  in  cases  of  collision  and 
other  wrongs  done  upon  the  high  seas  or  elsewhere  within  the  admiralt}' 
and  maritime  jurisdiction,  upon  the  general  policy  of  that  law  which 
looks  to  the  instrument  itself,  used  as  the  means  of  the  mischief,  as 
the  best  and  surest  pledge  for  the  compensation  and  indemnity  to  the 
injured  part}-." 

It  is  thus  apparent  that  the  liability  of  the  owner,  to  the  extent  of 


his  vessel,  for  injuries  caused  in  a  collision  by  negligence  or  miscon- 
duct, is  not  dependent  upon  the  relation  of  master  and  servant,  or 
pnncipal  j^n*^^  ^'^g<^''i^'  existing  between  him  and  the  crew  manning  the 
vessel,  but  rests  solely  upon  the  fact  of  ownership.  The  siiip,  wliich.  in 
contempTafion  of  ui.ii'itinie'Taw,  is  not  the  hulk  and  machinery  only,  but 
includes  the  crew  as  well,  is,  as  such,  the  offender,  and  the  ensuing 
losses  reach  the  owner  simply  because  of  his  relationship  to  the 
offender.  In  Rome,  it  is  said  that,  when  the  owner  of  slaves  was 
assassinated,  ever}'  slave  belonging  to  him,  however  otherwise  innocent, 
w^as  put  to  death.  The  penalty  came  not  as  the  result  of  participation, 
but  as  the  result  of  relationship.  The  maritime  law,  for  justifiable 
public  purposes,  inverts  this  mandate,  putting  every  owner,  by  virtue 
of  such  relation,  to  the  duty  of  compensation  for  losses  inflicted  by  his 
ship  property,  to  the  extent,  at  least,  of  the  value  of  such  property. 
Nor  is  this  liability  of  Uie  owner  indirect  alone,  for  the  admiralty  rules 
of  the  supreme  court  provide  (Rule  15)  "  that,  in  all  suits  for  damage 
by  collision,  the  libellant  may  proceed  against  either  the  ship  and 
master,  or  against  the  owner  alone  in  pertonam"  The  method  of  pro- 
cedure chosen  does  not  change   the  substantive   right  or  liahilitv.     Tn 


either  case  thesTiip  is  the  offender.  If  the  procedure  be  against  the 
ehip  alone,  resulting  in  seizure  and  sale,  the  owner  is  only  indirectly 
reached;  but,  if  it  be  against  the  owner  in  personam,,  the  remedy 
against  him  is  direct.  The  substantive  riglit  is  compensation  for  the 
\njnry,  and  can  be  either  by  way  of  the  ship  or  from  the  owner 
Uirectly. 


568 


THOMPSON   NAVIGATION   CO.   V.   CITY   OF   CHICAGO. 


I 


o^ 


A  firm  grasp  of  this  principle  of  maritime  law  clears  this  case  of  its 
(lilBculties.  At  common  law  the  city  is  not  liable  for  the  negligent  acts 
of  its  fire  department,  for  the  reason  that  the  members  of  the  fire  de- 
i)artraent  are  not  the  servants  of  the  city  in  its  corporate  c.auat;itv.  The 
negligence  of  the  firemen,  therefore,  is  not  attril)utable  to  the  cit\'. 
But  in  the  case  under  consideration  the  injury  done  by  the'TSfesel, 
including  its  crew,  to  the  libellant,  is  chargeable  to  the  owner,  by  virtue 
•»£-  the  mere  fact  of  ownership,  and  can  be  collected,  directh",  by  seizure 
»/  the  vessel,  or,  indirectly,  by  a  suit  in  jjersoficon.  In  either  case  the 
liability  rests,  not  in  the  relation  of  principal  and  agent,  or  master  and 
servant,  but  in  the  bare  fact  of  ownership. 

But,  tliough  such  liabilit}-  exists,  reasons  of  public  policy  may,  la 
some  cases,  exempt  the  owner  from  suit.  The  government,  as  sover- 
eign, for  instance,  declines  to  be  made  compulsorih*  amenable  to  the 
courts  upon  even  its  just  obligations.  This  exemption,  however,  is 
founded  entirely  in  public  policy  {T/ie  Siren,  7  "Wall.  152),  and  ought 
not  to  be  extended  to  cases  where  such  considerations  do  not  intervene. 
In  Englajid,  I  think,  the}-  do  better.  In  claims  arising  against  public 
vessels,  the  apparenth*  conflicting  right  of  the  sovereign  to  exemption 
from  suit,  and  her  dutj-  to  respond  to  just  claims,  are  both  maintained 
bv  a  procedure,  effective,  though  somewhat  fictitious.  A  petition  of 
right  is  addressed  by  the  aggrieved  person  to  the  lords  in  admiralty, 
representing  the  crown,  who,  in  turn,  direct  their  proctor  to  appear  and 
answer  a  suit  to  be  commenced  in  the  admiralt}-  court.  This  is  equiva- 
lent to  a  waiver  by  the  crown  of  its  privilege  as  a  sovereign,  and 
to  a  consent  that  the  rights  of  the  parties  be  tried  and  determined 
in  the  suit  as  between  subject  and  subject.  There  appears,  however, 
to  be  no  wa}'  of  making  the  government  of  the  United  States,  or 
of  a  state,  parties  to  such  a  proceeding,  because  no  procedure  has  been 
invented  here  wherebv  the  right  of  immunit}-  from  suit  is  waived.  But 
the  citv  of  Chicago  is,  by  law.  amenable  to  suit  and  judgment  upon  all 
just  claims  that  may  be  brought  against  it.  The  doctrine  of  public 
polic}',  therefore,  under  which  this  exemption  is  accorded  to  sovereigns, 
Btops  short  of  cit}'  government.  The  law  b}'  making  such  cities  suable 
abolishes  the  doctrine  in  what  might  otherwise  be  its  application  to  city 
governments.  The  legislative  will  has,  in  effect,  decreed  that  there  is 
no  public  policy  excepting  cities  from  suit.  The  cit}'  is  suable,  and 
maj-  be  decreed  to  pay  as  h  private  owner  wliere  a  case  is  proved.  This 
clearly  differentiates  this  case  from  The  Siren^  siqyra. 

One  other  consideration  alone  remains  :  I  have  held,  on  the  strength 
of  The  Fidelity,  16  Blatchf.  569,  decided  by  Chief  Justice  Waite 
on  the  circuit,  that  an  action  in  rem  cannot  lie  against  this  fire  boat. 
Will  that  prevent  a  decree  in  personam  against  its  owner?  The 
difference  between  mere  procedure  and  substantive  right  must  bo 
steadily  borne  in  mind.  The  latter  alone  determines  the  right  of 
some  judgment  or   redress.      The  former   only  fixes    the  method  of 


LEVY   V.   MAYOR   &C.    OF   NEW   YORK. 


569 


reaching  it.  A  seizure  of  the  vessel  is  only  a  species  of  execution  in  \\ 
advance  of  judgment.  It  is  usually  permissible  in  admiralty,  because, 
under  ordinary  circumstances,  most  effective  and  eqiiital)lo.  But  public 
policy  prevents  its  application  to  such  instrumentalities  of  emergency 
as  a  fire  tug.  A  city  cannot  be  left  to  burn  while  a  contest  over  a  few 
dollars  of  damage  is  going  on.  The  law,  therefore,  out  of  considera- 
tions of  public  polic}-,  forbids  such  seizure,  or  any  process  that  would 
disarm  the  citv,  even  temporarily,  of  its  equipment  to  put  down  fires 
or  like  dangers.  But  exemption  of  the  owner  of  the  boat  from  one  of 
the  ordinary  processes  of  the  court  is  not,  either  in  logic  or  law,  a  grant 
of  immunity  against  liability,  through  some  other  procedure,  not  sub- 
ject to  such  objections.  The  consideration  of  public  policy  extends 
only  to  the  mischief  to  be  averted.  To  give  it  a  wider  application 
would  make  it  an  instrument  of  injustice.  An  apt  illustration  of  this 
limitation  on  procedure  only  is  seen  in  the  law  which  exempts  cities,  in 
the  common-law  court,  from  seizure  of  their  property-  upon  execution. 
But  it  has  never  been  urged  that,  because  of  that,  they  were  not  sual)le 
at  all,  or  that  judgments  entered  against  them  were  in  no  way 
enforceable. 

My  conclusion  is  that  the  city  of  Chicago,  as  owner,  at  the  time  r.f 
the  collision,  of  the  fire  boat,  is  responsible  to  the  libellant  in  an  nction 
in  personam  to  the  extent  of  the  value  of  such  fire  boat  for  the  injuries 
caused.  T  recognize  that  in  this  conclusion  I  depart  from  the  case  of 
The  Fidelity,  supra,  but  believe  myself  to  be  in  consonance  with  the 
doctriae  laid  down  in  The  Siren,  svpra^  and  The  Malek  Adhel,  svpra. 

Decree  accordingly. 


^f'*-^.  Negligence  in  Executing  Governmental  Functions. 


Y\ 


sV 


\ 


\,^  LEVY  V.    MAYOR   &c.   OF   NEW  YORK. 

'5a^'"*^^^  ^®"*^'     ^  Sand  ford,  New  York  Superior  Court,  465.2 

t^ir^^i  The  city  of  New  York,  having  the  requisite  power,  enacted  an  ordi- 
^^5^  nance  prohibiting  swine  from  running  at  large  in  the  streets,  with  a 
jtd     penalty  and  also  a  provision  for  impounding  the  animals.     The  city 

ijj^  neglected  to  enforce  the  ordinance.    A  swine,  suflfered  to  roam  at  large 

^u»^  in  the  street,  attacked  the  plaintiff's  son,  aged  8.    The  bo}'  was  mortally 

.       injured,  dying  the  next  day.     The  father  brought  an  action  on  tlie  case 

\Zr^  against  the  city,  to  recover  damages  for  the  loss  of  his  son's  services 

^"^        and  for  the  expenses  of  burial.     The  declaration  alleged,  in  substancct 


the  foregoing  facts.     The  defendants  demurred. 

1  See  Workman  v.  New  York,  180  U.  S.  652. 

2  Statement  abridged.— Ed. 


;70 


LEVY   V.   M.U'OE    &C.    OF    NEW    YORK. 


6-<> 


Willis  Hall,  for  defendants. 

T.  Wcrrner,  for  plaintiff. 

Sandford,  J.  The  plaintiff's  counsel  well  observed,  that  there  was 
no  precedent  for  such  an  action  as  this  ;  and  we  are  compelled  to  add, 
that  there  is  no  principle  upon  which  it  can  be  sustained. 

The  corporation  is  undoubtedly  veste^l  with  certain  legislative  powers, 
amoni?  which  is  the  authority  to  restrain  swine  from  runnins;  at  larg?  in 
the  streets  ;  and  the}'  have  exercised  it  b}'  enacting  an  ordinance  to 
that  effect.  The  idea,  that  because  thoy  may  prohibit  a  nuisance,  that 
therefore  they  must  not  only  pass  a  prohibitory  law,  but  must  also 
enforce  it,  at  the  hazard  of  being  subjected  to  all  damages  which  may 
ensue  from  such  nuisance,  is  certainl}'  novel.  The  corporation  of 
the  city,  in  this  respect,  stands  upon  the  same  footing  within  its  own 
jurisdiction,  as  the  state  government  does  in  respect  of  the  state  at 
large. 

It  is  the  duty  of  the  government  to  protect  and  preserve  the  rights 
of  the  citizens  of  the  state,  both  in  person  and  propert}',  and  it  should 
provide  and  enforce  wholesome  laws  for  that  object.  But  injuries  to 
both  person  and  property  will  occur,  which  no  legislation  can  prevent, 
and  which  no  system  of  laws  can  adequately  redress.    The  government 

its  citizens  against  all   the   casualties  incident  to 


does  not 


guaranty 


humanity  or  to  civil  society  ;  and  we  believe  it  has  never  been  called 
upoiTtolnake  good,  b\-  wa\-  of  damages,  its  inabilitj-  to  protect  against, 
such  misfortunes. 
\  There  would  be  no  end  to  the  claims  against  this  cit\'  and  state,  if 
such  an  action  as  tliis  is  well  founded.  If  a  man  were  to  be  run  over, 
and  his  leg  broken  by  an  omnibus  racing  in  the  street,  he  would  forth- 
.^  «ft\j\j<^with  sue  the  citj-  for  damages,  because  the  corporate  authorities  neg- 
lected to  enforce  their  ordinance  against  racing  and  furious  driving  in 
the  public  streets.  So,  if  some  miscreant,  bv  placing  a  stick  of  timber 
on  a  railroad  track,  should  cause  the  destruction  of  a  passenger  train, 
with  great  loss  of  life  and  limb  ;  the  legislature  would  be  petitioned  by 
the  injured  survivors,  and  the  relatives  of  the  deceased,  for  the  dam- 
ages thereb}-  occasioned,  on  the  ground,  that  the  public  servants  should 
have  enforced  the  statute  enacted  against  such  offences. 

There  are  innumerable  illustrations  of  the  application  of  the  principle. 
It  suffices  to  say,  that  no  government,  whether  national,  state  or  muni- 
cipal, ever  assumed,  or  was  subjected  to  a  general  liability  of  this 
description. 

There  is  no  analogy  between  a  municipal  corporation  in  respect  of 
its  legislative  functions,  and  the  duty  or  the  liability  of  turnpike  com- 
panies, or  other  private  corporations  aggregate.  And  the  same  may  be 
said  of  the  dut\'  of  commissioners  of  highways,  and  like  public  officers, 
clothed  with  adequate  power  for  the  performance  of  some  plain  execu*- 
tive  or  ministerial  duty. 

As  to  the  argument  that  the  common  law  imposes  upon  the  corpora- 
tion the  duty  and  liability  in  question ;  we  are  unable  to  appreciate  it 


\ 


<^..,o- 


1     I 


QS-<^Wv-vOo-tv.  I    O^    ^^      ^<.^    '^^    ' 


t   . 


I 


7 


EASTMAN   V.   MEREDITH.  571 

Nor  do  we  understand,  that  as  a  corporation,  it  is  subjected  per  se,  to 
the  duty  of  keeping  swine  out  of  the  streets. 

We  have  had  occasion  frequently  to  hold  the  city  liable  for  the  negli- 
gence and  misfeasance  of  its  oflicers  and  agents  ;  but  the  principle  of 
that  liability,  has  no  application  here. 

Wyiving  the  consideration   of  the  other  objections  to  the  action,  \   'V 

which  are  presented  b}'  the  demurrers,  we  must  decide,  that  the  suit    sa^V 


cannot  be  maintained.^ 


^.*^"^ 


Judgment  for  the  defendants.  \A 
9X, 


^^^;u->N'  ^^     EASTMAN  V.   IklEREDITH. 


1*^     "V^TO  \%^'&.     3G  New  Hampshire,  284.'^ 

ERLEY,  C.  J.  The  following  may  be  taken  for  a  general  statement 
of  the  case  set  up  by  the  plaintiff.  The  town  of  Meredith  built  a 
town-house,  to  be  used  for  holding  town-meetings  and  other  public 
purposes.  The  house,  by  the  default  and  negligence  of  those  who 
built  it  in  behalf  of  the  town,  was  so  improperly  constructed  that  the 
flooring  gave  wa}-  at  the  annual  town-meeting  in  1855,  and  the  plain- 
tiff, an  iniiabitant  and  legal  voter,  in  attendance  on  the  meeting,  re- 
ceived a  serious  bodiU'  injury.  The  accident  and  injury  were  caused 
by  the  defects  and  insuiRciency  of  the  building. 

Assuming  that  it  was  the  duty  of  the  town  to  provide  a  safe  and 
suitable  place  for  holding  town-meetings,  the  question  will  remain, 
whether  a  citizen  of  tlie  town,  who  suffers  a  private  injuiy  in  the 
exercise  of  his  public  rights  from  neglect  of  the  town  to  perform  this 
public  duty,  can  maintain  an  action  against  the  town  to  recover  damages 
for  the  injury? 

Towns  in  this  State  are  declared  by  statute  to  be  corporations,  and 
consequently  ma}'  sue  and  be  sued  in  reference  to  all  their  legal  rights 
and  liabilities.  But  declaring  them  to  be  corporations  cannot  confer 
upon  them  other  powers  or  subject  them  to  other  duties  than  those 
which  are  conferred  and  imposed  either  by  express  provision  of  some 
statute,  or  are  implied  from  the  general  character  and  design  of  such 
public  corporations.     Hooper  v.  Emery,  14  Maine  377. 

We  have  no  statute  which  gives  an  action  against  a  town  for  an 
injur}*  like  that  complained  of  in  this  suit ;  but  the  general  position 
taken  for  the  plaintiff  is  this  :  The  town  is  a  corporation  ;  it  was  a 
public  duty  of  the  town  to  provide  a  safe  and  proper  place  for  hold- 
ing the  annual  town  meetings  ;  the  plaintiff  has  suffered  a  private 
injury  from  neglect  of  the  town  to  perform  this  public  duty,  and  the 
law  holds  a  corporation  liable  to  an  individual  for  any  private  damage  that 
he  may  suffer  from  neglect  of  the  corporation  to  perform  a  public  duty. 

1  See  Ci/'ve;-  v.  Streator,  130  111.  238,  22  N.  E.  810,  6  L.  R.  A.  270  ;  O'Rourke  v.  Sioux 
Falls,  4  S.  D.  47,  64  N.  W.  1044,  46  Am.  St.  Rep.  7G0  ;  Jones  v.  Williamsburg,  97  Va. 
722,  34  S.  E.  883 ;  Hagerstown  v.  Klotz,  93  Md.  437,  49  Atl.  836. 

2  Arguments  omitted.  —  Ed.  ^  *         ^  •>      I  5Lw>-4>-SL» 


c- 


572  EASTMAN    V.    MEREDITH. 

In  considering  the  authorities  which  have  been  relied  on  to  sustain 
the  general  position  of  the  plaintiff,  it  ma}'  he  well  to  distinguish  the 
different  classes  of  corporations  tliat  have  public  duties  to  perform, 
and  advert  to  the  grounds  upon  which,  in  different  cases,  the  legal 
liability  for  neglect  to  perform  tlie  public  duty  has  been  held  to  rest. 

Private  corporations,  by  the  conditions,  express  or  implied,  upon 
which  the}'  hold  their  corporate  powers,  are  frequently  charged  with 
the  performance  of  public  duties  ;  and  where  a  private  corporation, 
like  a  turnpike,  a  canal,  or  a  railroad,  accepts  a  grant  of  corporate 
powers  upon  condition  of  performing  a  public  duty,  and  an  individual 
suffers  a  private  damage  from  neglect  of  the  corporation  to  perform 
the  public  duty,  it  is  well  settled,  upon  the  authority  of  numerous  cases, 
that  he  ma}'  maiutain  an  action  against  the  delinquent  corporation,  to 
recover  his  damages.  A  large  proportion  of  the  cases  cited  for  the 
plaintiff  are  of  this  character. 

So  in  England,  where  a  public  duty  is  imposed  on  a  municipal  cor- 
poration as  a  condition  upon  which  the  corpoi-ate  franchises  or  corpor- 
ate property  have  been  granted  ;  or  where  the  corporation  holds  its 
franchises  or  property  by  a  prescription  from  which  a  grant  on  like 
condition  may  be  inferred,  it  has  been  held  that  any  individual  may 
maintain  an  action  against  the  corporation  to  recover  damages  for  an 
injury  which  he  has  suffered  from  neglect  to  perforin  the  public  duty. 
In  Henley  v.  Jyyme  Hegis,  5  Bingliani  91,  >S.  C.  in  jtJrror,  3  B.  & 
Adol.  77,  and  1  Bingham  N.  C.  222,  the  corporation  held  their  fran- 
chise of  a  borough,  and  also  a  pier  or  quay,  with  the  right  to  take  tolls 
under  a  grant  from  the  crown,  in  which  they  were  din^cted  to  repair  a 
sea  wall ;  and  it  was  held  that  the  plaintiff  might  maiutain  an  action 
to  recover  damages  which  he  had  sustained  by  the  neglect  of  the  cor- 
poration to  repair  the  wall.  In  that  case,  1  Blng.  N.  C.  222,  it  was 
said  tliat  where  a  matter  of  general  and  public  concern  is  involved, 
"and  the  king,  for  the  benefit  of  the  public,  has  made  a  certain 
grant,  imposing  certain  public  duties,  and  that  grant  has  been  accepted, 
we  are  of  opinion  that  the  public  may  enforce  the  performance  of  those 
duties  by  indictment,  and  individuals  peculiarly  injured,  by  action." 
In  the  Mayor  of  Lyme  in  Error  v.  Turner,  Cowper  87,  the  corporation 
had  immemorially  repaired  and  cleansed  a  creek,  and  the  plaintiff 
maintained  his  action  against  thfe  corporation  for  damage  caused  by 
interruption  of  the  navigation  of  the  creek  for  want  of  cleansing  and 
repairing.  In  that  case  it  was  said  by  Lord  Mansfield  that  as  the 
defendants  were  bound  by  the  prescription  to  repair,  "it  might  be  the 
very  condition  and  terms  of  their  creation  or  charter."  In  these  cases 
the  right  to  maintain  the  civil  action  appears  to  be  placed  on  the  ground 
that  the  municipal  corporation  accepted  the  grant  of  their  franchises 
or  their  property  from  the  crown  upon  the  condition  of  performing 
tlie  public  duty,  and  were  parties  to  a  contract  with  the  government 
in  the  same  way  as  private  corporations  are,  which  accept  the  grant  of 
corporate  powers  upon  similar  conditions. 


#  EASTMAN   V.   MEREDITH.  573 

It  is  also  to  be  observed  that  municipal  corporations  in  England  are 
broadl}'  distinguished  in  many  important  respects  from  towns  in  tliis 
and  the  other  New-England  States.  Tiiere  is  no  uniformity  in  tlie 
powers  and  duties  of  English  municipal  corpcn-ations.  They  are  not 
created  and  established  under  any  general  public  law,  liut  the  powers 
and  duties  of  each  municipality  depend  on  its  own  individual  grant  or 
prescription.  Their  corporate  franchises  are  held  of  the  crown  by  the 
tenure  of  performing  the  conditions  upon  which  they  have  been  granted, 
and  are  liable  to  forfeiture  for  breach  of  the  conditions.  They  indeed 
answer  certain  public  purposes,  as  private  corporations  do,  whicli  have 
public  duties  to  perform,  and  some  of  them  exercise  political  rights. 
But  the}"  are  not,  like  towns,  general  political  and  territorial  divisions 
of  the  country,  with  uniform  powers  and  duties,  defined  and  varied, 
from  time  to  time,  by  general  legislation.  Towns  do  not  hold  their 
powers  ordinarily  under  any  grant  from  the  government  to  the  indi- 
vidual corporation  ;  or  b}-  virtue  of  any  contract  with  the  government, 
or  upon  an}'  condition,  express  or  implied.  They  give  no  assent  in 
their  corporate  capacity  to  the  laws  which  impose  their  public  duties  or 
fix  their  territorial  limits.  X"  ^H  that  is  material  to  the  present 
inquiry,  municipal  corporations  in  England  bear  much  less  resemblance 
to  towns  in  this'countr}7~tlian~To  private  corporations  wlncli  are 
charged  with  the  performance  of  public  duties,  and  for  this  reason 
the  English  authorities  on  the  subject  are  but  remotely  applicable  to 
the  present  case. 

Grants  are  sometimes  made  to  particular  towns  or  cities,  of  special 
powers,  not  belonging  to  them  under  the  general  law  ;  and  there  is  a 
class  of  cases,  in  which  towns  and  cities  have  been  held  liable  to  civil 
actions  for  damages  caused  by  neglect  to  perform  public  duties  grow- 
ing out  of  the  grant  of  such  special  powers  :  as  the  power  to  bring 
water  by  an  aqueduct  for  public  use  hy  those  who  pay  a  compensation  .'YIt'*''*^-* 
for  it ;  to  light  the  place  with  gas,  on  the  same  terms,  or  to  make  and!  «»-»^>  q*" 
maintain   sev££i§   at  the  expense  of  adjoining  proprietors.     Thus  in  ft^^-^""^^ 

The  Mayor,  <fcc.,  of  New-York  in  Error  v.  Furze^  3  Hill  612,  the 
city  was  empowered  by  a  special  act  to  lay  down  and  maintain  sewers, 
and  charge  the  expense  upon  owners  and  occupants  of  houses  and  lots 
intended  to  be  benefited  ;  and  it  was  held  that  an  individual  might 
maintain   an  action  against  the  city  to  recover  damages  for  a  private  .    , 

injury  which  he  had  suffered  from  neglect  of  the  city  to  keep  the  sewersj  ^  ^  \y«»-**^ 
inpropei;^  repair.     The  distinction  between  the  liability  of  towns  and   V^-**tP  ■^^^ 
cities  for  neglect  to  perform  public  duties  growing  out  of  the  powers  (^^^^"^^^ 

which  they  exercise  under  the  general  law,  and  their  liability  when  the 
duty  arises  from  the  grant  of  some  special  power  conferred  on  the  par- 
ticular town  or  city,  is  recognized  or  explained  in  Bailey  v.  The 
Mayor,   Sc,   of  JVew-Tork,  3  Hill  531. 

The  decision  in  Lloyd  v.  The  Mayor,  &c.,  of  Nfic-YorJx,  1  Selden 
374,  is  put  upon  this  distinction,  between  a  duty  arising  from  tlie  errant 
of  a  special  power,  and  a  duty  implied  from  the  exercise  of  political 


574  EASTMAN   V.   MEREDITH. 

rights  under  the  general  law.  '*  The  corporation  of  the  city  of  New- 
York,"  it  is  said  in  that  case,  "  possess  two  kinds  of  powers,  one  gov- 
ern mental  and  public,  and,  to  the  extent  they  are  held  and  exercised, 
isT-Tolhed  with  sovereignt}- ;  the  other,  private,  and,_to  tii<^  cYtont  tlif^^ 
ai-e  held  and  exercised,  is  a  legaTlndividual.  The  former  are  given 
and  used  for  public  purposesj_  the  latter,  for  private  purposes  ;  w hiie 
in  the  exercise  of  the  former  the  corporation  is  a  municipal  govern- 
ment, and  while  in  the  exercise  of  the  latter,  a  legal  individual."  "  The 
rules  of  law  are  clear  and  explicit  whii;h  establish  the  rights,  immu- 
nities and  liabilities  of  the  appellants,  when  in  the  exercise  of  each 
class  of  powers." 

In  some  of  the   cases    in   which  cities  have  been  held   liable  to  a 
civil  action  for  neglect  to  perform  public  duties,  growing  out  of  grants 
c*-'>«»^         conferring  special  powers  and  privileges,  stress  appears  to  have  been 
'  ^^^TtZ!"^    ^^^^^  ^"  ^^^^  circumstance  tiiat  the  cit}-  derived  a  direct  pecuniar}-  profit 
^^^^^_^^,^     from   tlie  grant,  in  the  shape  of  a  toll  or  rent.     But  in  other  cases, 
where  no  benefit  of  tbat  kind  was  derived  from  the  grant,  cities  have 
been  held  liable,  and  the  decision  has  been  put  on  the  ground  that  the 
grant  of  special  powers,  though  not  the  source  of  an}-  direct  pecuniar}' 
profit,  was  yet  in  the  nature  of  a  special  privilege  or  immunity,  granted 
for  the  particular  local  advantage  of  the  city,  and  placed  the  corpora- 
tion on  the  same  footing  of  liabilit}'  as  if  the  benefit  were  in  the  shape 
of  a  rent,  or  toll,  or  other  pecuniary  income  ;  that  the  grant  was  made 
and  accepted  on   the  same  implied  condition  of  performing  the  public 
duties  growing  out  of  it,  as  if  it  had  afforded  a  direct  profit  in  money. 

In  Mears  v.  The  Commissioners  of  Wilm.ington^  9  Iredell  73,  the 
corporation  were  sued  for  undermining  a  brick  wall  in  grading  a  street, 
under  authority  conferred  on  the  town  b}'  sundr}'  special  acts  of  the 
Legislature,  and  were  held  liable  to  the  action.  In  that  case  the  court 
say,  "when  the  sovereign  grants  power  to  ai  municipal  corporation  to 
grade  the  streets,  the  grant  is  made  for  the  public  benefit,  and  is 
accepted  because  of  the  benefit  which  the  corporation  expects  to  receive, 
not  by  making  money  directly,  but  b}-  making  it  more  convenient  for 
individuals  composing  the  corporation  or  town  to  pass  and  repass  in 
the  transaction  of  business,  and  to  benefit  them  by  holding  out  greater 
inducements  for  others  to  frequent  the  town.  The  only  distinction  is 
that  in  one  case  the  money  is  received  directly,  in  the  other  indirectly. 
But  in  both  cases  the  individuals  composing  the  stockholders,"  (that 
is,  in  the  private  corporation,)  "  and  the  citizens  of  the  town,  derive 
special  benefit  from  the  work."  CunUfe  v.  The  Mayor  ^  t&c,  of  Albany^ 
2  Barb.  Sup.  Ct.  190,  would  seem  to  fall  into  the  same  class  of  cases. 
There  the  city  claimed  authorit}'  under  a  special  act  to  improve  the 
^K-t-»AA^  !liiXigi!i'^"  of  Albany  Basin,  and  to  maintain  a  bridge  ;  and  having 
altered  the  construction  of  the  bridge  under  authority  of  the  act,  were 


-v^ 


n      Jh  ■ 


;~^Io- <,  decided  to  be  liable  to  the  plaintiff  for  an  injury  causea  b}-  the  bridge 

'-J"^'<^~y-        while  he  was  on  it.     So  of  Rochester  White  Lead  Co.  v.  The  City  of 
Hochester,  3  Comstock  4G3,  and  Clark  v.  Washingtoti,  12  Wheaton  40. 


EASTMAN   V.    MEREDITH. 


5(0 


In  such  cases  the  special  powers  thus  granted  are  not  held  by  the 
particular  town  or  city  under  the  general  law,  and  as  one  of  the 
political  divisions  of  the  country.  The  public  duty  grows  out  of 
the  special  grant  of  power ;  and,  though  held  and  exercised  by  a  town 
or  city,  the  nature  of  the  power  granted  is  the  same  as  if  a  like  power 
had  been  conferred  on  a  private  corporation  created  to  answer  the 
same  public  object,  and  the  cases  above  referred  to  hold  the  town  or 
city  lialile  to  a  civil  action  for  neglect  to  perform  a  public  duty 
arising  from  tlie  grant  of  tlie  special  power  in  the  same  way,  and,  as  1 
understand  them,  upon  the  same  grounds  and  reasons,  as  private  cor- 
porations are  held,  which  are  clothed  with  the  same  powers  and  bound 
to  the  performance  of  the  same  public  duties.  So  far  as  I  have  had 
opportunity  to  examine  this  class  of  cases,  they  appear  to  go  upon 
the  ground  that  the  special  power,  though  no  direct  pecuniary  profit 
may  be  derived  from  it,  is  granted  as  an  immunity  and  peculiar  privi- 
lege, for  the  l)enefit  of  the  particular  town  or  cit}-,  and  is  accepted,  as 
in  the  case  of  a  private  corporation,  upon  the  implied  condition  of  per- 
forming the  public  duties  imposed  by  it  and  growing  out  of  it.  Henley 
V.  Lyme  Megis,  1  Bing.  N.  C.  222  ;  3Iears  v.  Wilmington.,  9  Iredell 
73  ;  May  or  ^  cCc,  of  New-York  v.  Bailey,  2  Denio  456. 

This  distinction^etween  corporations  that  voluntarilv  accent   the 

grant  of  special  powers_from  the  government,  and  tlie  inhabitants  of 

^ny  district  who  are  by  statute  invested  with  particular  powers  with- 

jOut_tlieir  consent,  is  stated   and   relied  on  bv  Parsons,   C.  J.,  in  the 

early  case  of  Riddle  v.  Locks  and  Canals^  7  Mass.  187,  and  is  recog- 

tiized  in  Sears  v.  The  Turnpike.,  7  Ct.  9. 

The  case  of  Pittsburg  City  in  Error  v.  Grier,  22  Penn.  54,  cited 
for  the  plaintiff,  stands  upon  grounds  which  clearly  distinguish  it  from 
the  present.  The  city,  in  that  case,  was  in  possession  of  a  public 
wharf,  exercising  an  exclusive  supervision  over  it,  and  receiving  tolls 
for  its  use  ;  and  the  plaintiff  sustained  a  special  injury  from  the  neglect 
of  the  city  to  keep  the  wharf  in  order.  Black.,  C.  J.,  delivering  the 
opinion  of  the  court,  says,  "The  rule  undoubtedly  is,  that  those  who 
have  a  public  work  under  their  control  are  bound  to  repair  it,  and  the 
force  of  this  obligation  is  still  further  increased  when  it  yields  its  pos- 
sessors a  revenue.  The  cases  above  cited  show  that  this  princii)Ie 
applies  to  public  ports  in  possession  of  a  city,  as  well  as  canals, 
bridges  and  other  highways  in  the  hands  of  individuals  and  private 
corporations."  "  The  injury  is  a  violation  of  the  duty  which  arises 
out  of  the  control  which  the  citj-  has  over  the  port,  and  her  receipt 
of  tolls  from  the  vessels  which  come  into  it."  The  case  is  thus  put 
distinctly  on  the  ground  that  the  public  duty  which  was  the  foundation 
of  the  action  arose  out  of  the  control  which  the  city  exercised  over  the 
wharf  and  the  income  received  for  the  use  of  it 

In  several  of  the  cases  cited  for  the  plaintiff,  cities  and  towns  have 
been  held  liable  for  private  injuries  done  bv  them  in  the  course  of 
executing  works  which  they  were  by  law  authorizeo  to  perform.     \\\ 


0>t><>.^^C-<i^ 


<t\*r«'*% 


576  EASTMAN   V.    MEREDITH. 

Scott  V.  The  Mdyor  and  Aldermen  of  Manchester^  37  Law  &  Eq.  495, 
b\-  the  carelessness  of  workmen  whom  the  defendants  emplo3-ed  in 
laying  oTj.s-pi[)es.  a  piece  of  metal  was  thrown  into  the  plaintiffs  eye, 
and  th'ejotJr  was  held  to  be  lialjje.  So  in  Delmonico  v.  The  Mayor, 
tbc,  of  New-  York,  1  Sanford  222,  an  action  was  maintained  for 
damage  sutfered  b}-  the  plaintiff  from  the  negligence  of  the  defend- 
ants in  the  process  of  constructing  a  sewer.  The  remarks  of  the  conrt 
in  Anthony  v.  Adams,  1  Met.  285,  are  to  the  point,  that  an  action 
may  be  maintained  against  a  town  in  such  a  case.  The  plaintiff,  in 
cases  of  this  character,  does  not  recover  on  the  ground  that  he  has 
been  denied  an}'  public  right  which  the  corporation  owed  to  him  as  a 
citizen  of  the  town,  or  because  he  has  suffered  an  injury  in  the  exercise 
of  a  public  right,  from  neglect  of  the  town  to  perform  a  public  dut}*. 
The  corporation  being  authorized  b}'  law  to  execute  the  work,  if,  in 
their  manner  of  doing  it,  they  cause  a  private  injury,  the}'  are  answer- 
able in  the  same  way  and  on  the  same  principle  as  an  individual  who 
injures  another  b}'  the  wrongful  manner  in  which  he  performs  an  act 
lawful  in  itself.  It  has  been  sometimes  made  a  question,  whether  in 
the  particular  case  the  corporation  were  liable  as  principals  for  the 
conduct  of  those  who  performed  the  work  on  their  account;  but  where 
a  work  is  once  conceded  to  be  done  by  the  corporation,  it  would  seem 
to  be  clear,  on  authorit}'  and  general  principles,  that  a  corporation, 
public  or  private,  must  be  held  liable  like  an  individual  for  injuries 
caused  by  negligence  in  the  process  of  executing  the  work. 

Then,  again,  towns  and  other  municipal  corporations,  including  coun- 
ties in  this  State,  have  power,  for  certaui  purposes,  to  hold  and  manage 
property,  real  and  personal ;  and  for  private  injuries,  caused  by  the 
*  improper  management  of  their  property,  as  such,  they  have  been  held 
j|;o  the  general  liabihty  of  private  corporations  and  natural  persons  that 
own  !i^n(j_jnanno;^  tho<fqrnp)^ind  of  property  Bailey  v.  The  Mayor, 
<&c.,  of  Neio-York,  3  Hill  541.  So  far  as  they  are  the  owners  and 
managers  of  property,  there  would  seem  to  be  no  sound  reason  for 
exempting  them  from  the  general  maxim  which  requires  an  individual 
so  to  use  his  own  that  he  shall  not  injure  that  which  belongs  to  another. 
So  if  a  town  or  city  maintain  an  erection  or  structure  which  is  a  private 
nuisance,  and  causes  a  special  damage,  or,  in  the  performance  of  an 
authorized  act,  invade  an}'  right  of  property,  the  corporation  has  been 
held  liable  to  a  civil  action.  Thayer  v.  Boston,  19  Pick.  51 1  ;  Akron 
v.  McComb,  18  Ohio  229  ;  Ehodes  v.  Cleveland,  10  Ohio  159.  If  the 
defendants  in  the  present  case  had  laid  and  maintained  the  foundations 
of  their  town-house  across  a  stream,  and  caused  the  water  to  flow  back 
on  the  plaintiff's  land,  according  to  these  authorities  they  would  have 
been  liable  to  an  action  for  the  damage. 

The  case  of  the  plaintiff  cannot  be  classed  with  any  of  those  to 
which  we  have  adverted.  The  question  here  is,  whether  a  town  is 
liubie  to  the  action  of  a  citizen  of  the  town  who  has  suffered  a  si)ecial 
cl£.mage  from  neglect  of  the  town  to  provide  a  safe  place  for  holding 


EASTMAN    V.   MEREDITH.  577 

the  annual  town-meeting.  The  pubhc  duty  reUed  on  is  not  enjoined 
bj'  express  provision  of  any  statute.  If  such  a  duty  exists,  it  is  im[)lied 
from  the  general  character  and  design  of  such  quasi  corporations,  and 
must  depend  on  the  general  law  applicable  to  all  towns.  Here  is  no  con- 
tract, express  or  implied,  between  tlie  State  and  the  individual  town,  and 
no  grant  of  any  special  power  or  privilege  which  can  be  supposed  to 
have  been  voluntarily  accepted  by  the  town  upon  condition  of  pei-form- 
ing  the  tjublic  duty-  Towns  are  involuntary  territorial  and  political 
divisions  of  the  State,  like  counties,  established  for  purposes  of  govern- 
ment and  municipal  regulation.  It  is  chiefly  through  this  organization 
of  towns  that  the  people  exercise  the  sovereign  power  of  government; 
and  the  plaintiff's  claim  is  for  damages  which  he  has  suffered  from 
neglect  of  the  town  to  provide  him  a  safe  place  for  the  exercise  of  his 
public  and  political  rights  as  a  citizen  of  the  town  and  State.  Among 
the  numerous  authorities  which  the  laudable  industry  of  the  plaintitrs 
counsel  has  brought  to  our  notice,  I  have  not  found  one  whicli  goes 
tlie  length  of  holding  that  an  action  can  be  maintained  in  a  case  like 
this.  The  cases  cited  that  come  nearest  the  present  are  perhaps  those 
in  which  it  has  been  held  that  a  town  or  city  is  liable  for  a  private 
damage  caused  by  neglect  to  perform  a  public  dut}-  growing  out  of  the 
grant  of  some  special  power.  But  those  cases  cannot  be  regarded  as 
authorities  in  point,  because  the}-  appear  to  have  been  decided  upon  a 
distinction  between  the  exercise  of  such  special  powers,  and  the  exercise 
of  the  general  powers  which  belong  to  all  towns  as  mere  public  and 
political  divisions  of  the  country,  and  upon  the  ground  that  the  special 
powers  thus  granted  to  the  individual  town  or  cit}^  were  in  the  nature 
of  privileges  accepted  upon  the  implied  condition  of  performing  the 
public  duties  growing  out  of  them.  On  the  other  hand,  there  is  a  great 
weight  of  authorit}-  to  show  that  towns  in  New-England  are  not  liable 
to  a  civil  action  in  a  case  like  this. 

In  Middle  v.  The  Locks  and  Canals^  7  Mass.  I(j9,  187,  the  case  of 
Hussell  v.  The  3Ien  of  Devon^  2  T.  R.  G67,  is  cited  as  an  authority 
appHcable  to  towns  and  counties  in  Massachusetts  ;  and  in  Moxcer  v. 
Leicester,  9  Mass.  250,  it  was  held  that  towns  are  not  liable  to  a  civil 
action  for  neglect  to  perform  public  duties  imposed  on  them,  unless  the 
action  were  given  b}-  some  statute,  and  Russell  v.  The  Jfen  of_  Devon 
was  again  recognized  as  applicable  to  the  case  of  towns.  The  Mer- 
chants' Bank  v.  Cook^  4  Pick.  114;  Tisdale  v.  Norton,  8  Met.  292; 
Holman  v.  Tovonsend,  13  Met.  300,  and  Brady  v.  Lowell^  3  Gushing 
124,  are  to  the  same  point. 

In  Adams  v.  Wiscasset  Bank,  1  Greenl.  361,  Mellen,  C.  J.,  cites 
from  Middle  v.  The  Locks  and  Canals  the  remarks  of  C.  J.  Parsons 
on  this  subject,  and  adds,  "  No  private  action,  unless  given  b}-  statute, 
lies  against  quasi  corporations  for  breach  of  a  corporate  duty."  And 
other  cases  in  Maine  would  seem  to  show  that  the  rule  as  above  stated 
is  well  established  in  that  State.  Hooper  v.  Emery,  14  Maine  377; 
Reed  v.  Belfast,  20  Maine  248 ;  Sanford  v.  Augusta.  32  Maine  536. 


578  EASTMAN   V.   MEREDITH. 

We  understand  the  same  rule  to  prevail  in  Vermont.  In  Baxter 
V.  The  iVinooski  Turnpike^  22  Vt.  123,  Bennet,  J.,  in  delivering  the 
opinion  of  the  court,  saj-s,  "  I  take  it  to  be  well  settled  that  if  the 
statute  had  not  given  the  action,  no  individual  who  had  sustained 
a  special  damage  through  neglect  of  the  town  to  repair  their  roads, 
could  maintain  a  suit.  It  may  be  said  that  where  an  individual  sus- 
tains an  injury  by  the  neglect  or  default  of  another,  the  law  gives  a 
remedy ;  but  that  principle  does  not  apply  where  the  public  are  con- 
cerned." And  the  same  general  doctrine  is  affirmed  in  Hyde  v. 
Jamaica,  27  Vt.  443. 

In  Connecticut  it  is  held  that  no  action  will  lie  for  injuries  caused  by 
defects  in  a  highway,  unless  given  by  statute.  Chedsey  v.  Canton, 
17  Conn.  475. 

In  Farnum  v.  Concord,  2  N.  H.  392,  Eichardson,  C.  J.,  says,  "  Xo 
action  lies  at  common  law  against  towns  for  damages  sustained  through 
defects  in  highways."  He  cites,  as  authorities  for  his  position,  Moicer 
V.  Leicester^  and  Russell  v.  TJie  Men  of  Devon,  and,  after  quoting  the 
provision  of  our  statute  which  gives  an  action  for  special  damages 
caused  by  insufficiency  of  highways,  he  adds,  "  And  the  question  is, 
whether  any  damage  has  happened  to  the  plaintiff  in  this  case  by  means 
of  the  insufficiency  or  want  of  repairs  of  the  highway'  in  question, 
within  the  intent  and  meaning  of  this  statute."  The  right  to  recover 
against  the  town  is  thus  placed  entireh'  on  the  statute. 
^  It  is  said  in  argument  that  the  authority  of  these  New-England  cases 
is  much  weakened  by  the  circumstance  that  they  may  all  be  referred 
?m-jjioiv_oHioi n  tr>  Russell  y.  The  Men  of  Devon,  and  that  the  reasons 
assij^ned  for  the  decision  in  that  case  are  not  applicable  to  our  towns. 
There  is  certainly  no  such  exact  resemblance  between  counties  in 
England  and  our  towns,  as  will  make  all  the  reasons  upon  which  the 
court  in  that  case  placed  their  decision  applicable  to  towns  in  this  State. 
Counties  in  England  are,  however,  territorial  and  political  divisions  of 
the  country,  as  counties  and  towns  are  here  ;  they  are  quasi  corpora- 
tions, so  far  as  to  be  liable  to  public  prosecution  for  neglect  to  perform 
their  public  duties ;  and  the  reason  that  the  county  had  no  corporate 
fund  out  of  which  the  plaintiff's  judgment  could  be  paid,  would 
seem  to  be  as  strong  against  maintaining  an  indictment  as  a  civil 
action  ;  for  it  is  not  easy  to  see  how  the  want  of  a  corporate  fund 
would  make  it  more  difficult  to  collect  a  judgment  recovered  by  an  indi- 
vidual, than  to  lev}'  a  fine  assessed  after  conviction  on  an  indictment. 
Th.it  is  indeed  admitted  in  the  judgment  of  the  court,  and  the  liability 
of  a  county  to  indictment  put  on  the  .ground  of  authoiity  and  unbroken 
usage.  And  the  doctrine  of  that  case  has  been  adopted  and  applied 
to  towns  in  numerous  instances,  b}'  judges  who  must  certain!}'  be 
reckoned  among  the  most  eminent  jurists  that  New-England  has  pro- 
duced :  l\v  Parsons  and  Shaw  in  Massachusetts,  b}'  Mellen  and  SJiep' 
ley  in  Maine,  and  by  our  own  learned  and  excellent  Chief  Justice  Rich- 
ardson^ in  this   State ;  names  which  carr}'  with  them   an  irresistible 


EASTMAN   V.   MEREDITH.  579 

weight  of  authority  on  all  legal  questions,  and  especially  on  one  like 
the  present ;  for  no  men  in  the  country  have  been  more  familiarly 
acquainted  with  the  whole  legal  history  of  towns  in  New-England, 
and  all  the  traditions  of  the  law  in  relation  to  them. 

A  manuscript  case  of  Wheeler  v.  Troi/  has  been  shown  to  us,  in 
which  it  is  understood  to  have  been  decided,  in  December,  1848,  at 
the  term  of  the  Superior  Court  for  Chesliire  count}-,  tliat  towns  in  this 
State  are  liable  to  an  action  for  damages  caused  by  defect  of  highway's, 
independent  of  the  statute  which  gives  the  action.  Taking  that  case 
to  be  correctly  reported  and  to  have  been  correctly  decided,  it  is  far 
from  coming  up  to  the  present.  Thedutyto  repair  highways  is  espe- 
cially enjoined  upon  towns  by  statute,  for  the  common  benefit  of  all  who 
have  occasionto  use  them.  It  is  not  a  pubhc  d^y,  supposed  to  be 
devolved  upon  towns  to  enable  tlieir  own  citizens  to  exercise  and 
ejjjoy  their  public  and  political  rights,  like  that  on  wtiich  the  plamtiff 
rpljps  in  this  rasp. 

We  find,  however,  upon  inquir}',  that  this  case  of  Wheeler  v.  Iroi/ 
was  decided  by  two  only  of  the  three  judges  then  on  the  bench,  in  the 
absence  of  Mr.  Justice  Woods,  whose  opinion  on  a  question  of  this 
kind  would  have  added  great  weight  to  the  authority  of  tlie  case  ;  and 
we  have  no  information  that  he  then  concurred  or  now  concurs  in  the 
decision.  The  case  has  remained  long  without  any  published  report,  "^i/^j-r?  < 
and  has  received  no  confirmation  from  recognition  in  any  subsequent 
decision,  or  from  the  acquiescence  of  the  legal  profession  ;  and,  indeed, 
the  manuscript  report  of  the  case  fails  to  afford  evidence  that  it  was 
decided  after  so  careful  and  thorough  a  consideration  as  was  usual  with 
that  court ;  and,  if  an  occasion  should  hereafter  arise  to  require  it,  we 
should  feel  quite  at  libert}-  to  reverse  the  decision  ;  but  we  do  not  find 
ourselves  called  on  to  do  it  at  this  time. 

A  distinction  has  been  suggested  in  argument,  between  an  omission 
or  total  neglect  to  perform  a  public  dut}',  and  negligence  in  the  manner 
of  performing  it.  It  has  been  contended  that  though  the  town  might 
not  be  liable  for  damages  caused  by  omission  to  perform  the  duty,  they 
would  be  for  an  injury  caused  b}-  the  negligent  and  improper  manner  of 
performing  it.  There  are  doubtless  cases  where  a  party  who  is  under 
no  legal  obligation  to  perform  an  act  or  service,  is  yet  liable  for  damages 
caused  by  his  negligence,  if  he  voluntarily  enters  upon  the  perform- 
ance of  it.  But  our  discussion  of  this  case  has  gone  on  the  assump- 
tion that  it  was  the  duty  of  the  town  to  provide  a  safe  and  suitable 
place  for  holding  the  town-meeting ;  and  we  are  unable  to  perceive  any 
distinction  in  principle  between  a  claim  to  recover  damages  for  a  total 
neglectto  perform  an  admitted  public  duty,  and  for  neglect  to  perform 
it  properly  and  witli  due  care,  when  the  in.iury  compiainea  oi  uappens 
to  the  plaintiff  in  the  exercise  of  his  public  rights  as  a  citizen  of  the 
town.  The  duty  is  not  performed  unless  it  is  properly  performed.  In 
both  cases  the  town  has  neglected  to  perform,  or  failed  to  perform,  the 
public  duty  which  they  owed  to  the  plaintiff  and  other  citizens. 


6-cr-^ 


580  BUTTRICK   V.   CITY   OF   LOWELL. 

We  see  no  reason  to  question  the  autliorit}'  of  towns  to  build  ancE 
own  town-houses,  to  be  used  for  holding  town-meetings  and  other 
public  purposes.  But  it  by  no  means  follows  as  a  necessary  conse- 
quence that  it  is  the  dut}'  of  towns  to  provide  houses  of  their  own  for 
Buch  purposes.  And  even  where  the  town  is  provided  with  a  town- 
bouse,  we  are  not  required,  in  the  view  which  we  take  of  this  case,  to 
say  whether  the  duty  to  see  that  the  house  is  in  proper  order  for  public 
use  rests  on  the  town  in  a  corporate  capacity,  or  on  the  officers  of  the 
town.  There  is  no  statute  that  requires  town  meetings  to  be  held  at 
the  town-house,  even  in  cases  where  the  town  owns  such  a  building. 
On  the  contrar}-,  the  warrant  of  the  selectmen  notifying  the  meeting  is 
b3'  the  statute  "  to  prescribe  the  place."  If  the  town-house  were  known 
at  the  time  to  be  in  an  unsafe  condition,  it  would  hardly  be  contended 
that  their  duty  would  require  tlie  selectmen  to  notify-  the  meeting  to 
be  held  there.  It  may  perhaps  bt^  fonnd.  whon  the  question  shall  be 
considered,  that  it  belongs  to  the  town  officers,  and  not  to  the  town  in 
a  corporate  capacity,  to  see  that  the  town  meetings  are  held  in  a  safe 
and  suitable  place. 

We  regard  the  present  case  as  one  of  new  impression.  We  have 
beard  of  no  earlier  attempt  in  this  State  to  maintain  an  action  against 
a  town,  for  a  private  injury  suffered  by  a  citizen  of  the  town  from 
neglect  of  the  town  to  provide  him  with  safe  and  suitable  means  of 
exercising  his  public  rights,  and  we  are  not  informed  of  any  case  in 
which  such  an  action  has  been  maintained  in  an}'  other  State.  We 
believe  it  to  have  been  the  general  understanding  of  the  profession 
in  this  State,  that  an  action  will  not  lie  against  a  town  for  neglect  to 
perform  a  mere  public  dut}',  unless  the  action  is  given  bj'  statute.  The 
authorities  cited  in  support  of  the  plaintiff's  action  are  veiy  distin- 
guishable, as  we  think,  from  the  present  case,  and  there  is  a  great 
"weight  of  authority  on  the  other  side. 

Our  conclusion  is,  that  this  action,  on  the  case  stated  to  us,  cannot 
be  maintained.^  i, 

. r 


\ 


BUTTRICK  V.    CITY   OF   LOWELL. 

1861.     1  Allen  (Massachusetts),  172.^ 

Tort  for  an  assault  and  battery. 

A  city  ordinance  provides,  that  "  three  or  more  persons  shall  not 
stand  together  or  near  each  other  in  any  street  in  the  city  in  such  -4.^ 
manner  as  to  obstruct  a  free  passage  therein  for  passengers."  While 
the  plaintiff  was  standing  peaceably,  and  talking  with  only  one  other 
person,  upon  the  sidewalk,  and  interrupting  no  one  in  the  proper  use 
of  the  same,  two  police  officers  of  the  city  of  Lowell  ordered  him  off, 

1  See  Snider  v.  St.  Paul,  61  Minn.  466,  53  N.  W.  763 ;  Kelly  v.  Boston,  186  Mass. 
166,  71  N.  E.  299,  66  L.  R.  A.  429;  Fox  v.  Philadelphia,  208  Pa.  127,  67  Atl.  356, 
65  L.  R.  A.  214. 

2  Statement  abridged. —  Ed. 


BUTTRICK  V.   CITY   OF   LOWELL.  581 

and,  upon  his  refusing  to  go,  assaulted,  arrested,  and  imprisoned 
him;  claiming  that  by  so  doing  they  were  only  performing  their 
official  duty.  The  plaintiff  brought  an  action  of  tort  against  the 
policemen  for  false  arrest  and  assault  and  battery.  The  policemen 
attempted  to  justify  their  proceeding  under  the  above  city  ordinance. 
The  plaintiff  recovered  judgment  against  the  policemen  for  $500 ;  which 
judgment  remains  unsatisfied.  The  city  of  Lowell  authorized  its  solici- 
tor to  appear  in  the  defence  of  said  suit,  and  paid  him  for  trying 
the  same.  The  plaintiff  now  brings  the  present  action  against  the 
city,  to  recover  damages  for  said  assault  by  the  police  officers. 

Upon  an  agreed  statement,  setting  forth  substantially  the  foregoing 
facts,  a  nonsuit  was  ordered.     Plaintiff  appealed. 

B.  F.  Butler^  for  the  plaintiff.  The  rule  regulating  the  liability 
of  "a  municipal  corporation  seems  to  be  this:  (1.)  no  liability  exists 
for  the  negligence  of  public  officers  over  whom  it  has  no  control  save 
in  their  appointment;  (2.)  liability  does  exist,  under  the  doctrine  of 
rtspondent  superior^  in  all  cases  in  which  the  servant  is  in  the  direct 
execution  of  a  trust  or  order  of  the  city  or  town,  within  the  scope  of 
its  authority,  or  upon  any  matter  upon  which  it  may  make  by-laws. 
Gushing  v.  Stougliton,  6  Cush.  389.  Thayer  v.  Boston^  19  Pick.  511. 
Perry  v.  Worcester^  6  Graj^,  544. 

T,  II.  Siveetser,  for  the  defendant. 

BroELOW,  C.  J.  This  case  must  be  governed  by  the  decisions  in 
Hafford  v.  City  of  New  Bedford.,  16  Gray,  297,  and  Walcott  v 
Sicavipscott^  ante,  101.  Police  officers  can  in  no  sense  be  regarded 
as  agents  or  servants  of  the  city,  ineir  duties  are  of  a  public  nature. 
Their  appointment  is  devolved  on  cities  and  towns  by  the  legislature  , 
as  a  convenient  mode  of  exercising  a  function  of  government;  but  I  *\  ^"^"^^ 
this  does  not  render  them  liable  for  their  unlawful  or  negligent  acts.  '<fi-*>Ajt^ 
The  detection  and  arrest  of  offenders,  the  preservation  of  the  public 
peace,  the  enforcement  of  the  laws,  and  other  similar  powers  and 
duties  with  which  police  officers  and  constables  are  intrusted,  are 
derived  from  the  law,  and  not  from  the  cit}'  or  town  under  which  they^ 
hold  their  appointment.  For  the  mode  in  which  they  exercise  their 
powers  and  duties  the  city  or  town  cannot  be  held  liable.  ^^ 

Nor  does  it  make  any  difference  that  the  acts  complained  of  werei  vT 

done  in  an  attempt  to  enforce  an  ordinance  or  by-law  of  the  city.  |**^^*^ 
The  authority  to  enact  by-laws  is  delegated  to  the  city  by  the  sover-  •  <**-^'*^"^^ 
eign  power,  and  the  exercise  of  the  authority  gives  to  such  enact- 
ments the  same  force  and  effect  as  if  they  had  been  passed  directly 
by  the  legislature.  They  are  public  laws  of  a  local  and  limited  opet' 
ation,  designed  to  secure  good  order  and  to  provide  for  the  welfare 
and  comfort  of  the  inhabitants.  In  their  enforcement,  therefore, 
police  officers  act  in  their  public  capacity,  and  not  as  the  agents  or 
servants  of  the  city. 


I 


582 


GILBOY   V.   CITY   OF   DETROIT. 


^^ 


The  facts  relied  on  in  this  case  to  show  a  ratification  or  adoption 
by  the  city  of  the  acts  of  the  police  officers  cannot  have  that  effect. 
They  are  entirely  consistent  with  a  belief  on  the  part  of  the  mayor 
and  other  agents  of  the  city  that  the  police  officers  had  committed  no 
unlawful  invasion  of  the  plaintiff's  rights.  Perley  v.  Georgetown^ 
7  Gray,  464. 

It  may  be  added  that,  if  the  plaintiff  could  maintain  his  position 
that  police  officers  are  so  far  agents  or  servants  of  the  city  that  the 
maxim  respondeat  superior  would  be  applicable  to  their  acts,  it  is 
clear  that  the  facts  agreed  would  not  render  the  city  liable  in  this 


Si-*^"*^ '^**'^**^ction ;  because  it  plainly  appears  that,  in  committing  the  acts  com- 
^^■*^'^J~*|jj^^|2*^lained  of,  the  officers  exceeded  the  authority  vested  in  them  by  the 
r^t^^.         by-law  of  the  city.i 
■^^         1  Judgment  for  the  defendants. 


GILBOY   ET  AL.    V.    CITY   OF   DETROIT, 

Supreme  Court  of  Michigan.     December  7,  1897. 

Grant,  J.  This  is  an  action  of  tort.  The  declaration  alleges  thVt<Vs 
plaintiff  kept  a  boarding  house;  that  he  received  a  boarder  in  the 
usual  course  of  business;  that  said  boarder  had  been  exposed  to  '^ 
Bmall-pox  at  the  Merchant's  Hotel  in  the  city  of  Detroit;  and  that 
through  the  negligence  of  the  Board  of  Health  said  person  was  per- 
mitted to  go  at  large  instead  of  being  confined;  that  it  was  the  duty 
of  the  Board  of  Health,  under  the  charter  and  ordinances  of  the  city, 
to  examine  the  person  at  the  Merchant's  Hotel,  determine  whether 
she  had  small-pox,  and,  if  she  had,  to  remove  her  to  a  pest  house  or 
hospital;  that  the  person  received  into  plaintiff's  boarding  house  was 
taken  down  with  small-pox  while  there,  and  he  in  consequence  suffered 
loss  and  damage. 

A  demurrer-was  interposed  and  sii stained  by  the  Court. 

The  record  presents  the  sole  questionj  Is  a  municipality  liable  for 
the  negligence  of  officers  of  the  Board  of  Health  in  the  performance 
nf  their  duty?  Counsel  for  the  plaintiff  cite  no  authorities  to  sup- 
port their  contention,  and  probably  for  the  very  good  reason  that 
none  can  be  found.  The  authorities  universally  hold  to  the  contrary. 
The  universal  rule  is  that  such  boards  and  officers  are  not  acting 
for  private  but  for  public  purposes ;  they  represent  the  entire  stafe" 
through   the    municipality,    a   political   division   of   the   state;    anT 


in  the  absence  of  express  statutes  fixing  liability,  are 

Maxniilian 


municipalities, 

liable  for  the  negligence  of  such  officers  and  boards. 
Maijoi;  G2  N.  Y.  160;  Uiclimoyid  v.  Longs  Admrs.,  17  Grat.  375; 

1  See  La  Clef  v.  Concordia,  41  Kan.  323,  21  Pac.  272,  13  Am.  St.  Rep.  285;  Kansas 
City  V.  Lemen,  57  Fed.  905. 

2  From  copy  of  opinion  furnished  by  Clerk  of  Supreme  Court.  —  Ed. 


McDADE   V.    CITY   OF   CHESTER. 


583 


Brown  v.    Vinalhaven^  65   Me.  402;   Barbour 
294;  Mead  v.  Neiv  Haven^  40  Conn.  72; 
Shelbourne  v.    y?t&a,  21  Cal.  113;  Detroit  v. 
Z/i7^  V.  Boston,  122  Mass.  344;  2  Dill.  Corp 


V.   Ellsworth,   67  Me. 

Blmkebi/,  21  Mich, 
sec.  965. 


Oyy  V.  Lansinr/,  35  la.  495 , 

84; 


Broivn  v.   Vinalhaven  is  the  counterpart  of  this  in  its  facts. 

The  rule  is  so  clearly  stated  by  Justice  Folger  in  MaxmiUan  v. 
Mayor  that  we  quote  it:  "  There  are  two  kinds  of  duties  which  are 
Imposed  upon  a  municipal  corporation:  one  is  of  that  kind  which 
arises  from  the  grant  of  a  special  power,  in  the  exercise  of  which  the 
municipality  is  as  a  legal  individual;  the  other  is  of  that  kind  which 
arises,  or  is  implied,  from  the  use  of  political  rights  under  the  gen- 
eral law,  in  the  exercise  of  which  it  is  as  a  sovereign.  The  former 
power  is  private,  and  is  used  for  private  purposes;  the  latter  is  pub- 
lic and  is  used  for  public  purposes.  The  former  is  not  held  by  the 
municipality  as  one  of  the  political  divisions  of  the  State;  the  latter 
is.  In  the  exercise  of  the  former  power,  and  under  the  duty  to  the 
public  which  the  acceptance  and  use  of  the  power  involves,  a  munici- 
pality is  like  a  private  corporation,  and  is  liable  for  a  failure  to  use 
its  power  well,  or  for  any  injury  caused  by  using  it  badly.  But 
where  the  power  is  intrusted  to  it  as  one  of  the  political  divisions  of 
the  State,  and  is  conferred  not  for  the  immediate  benefit  of  tbe 
municipality,  tKll  as  a  uieauij  Lo  the  exerul^ti  Of  the  sovereign  power" 
for  the  beiiefit  of  all  citizens,  the  corporation  is  not  liable  for  non- 
user,  nor  for  mis-user  by  tlie  public  agentsT" 

Judgment  affirmed. 


^'^^j^,^^^3j%.J-^^  V.   CITY   OF   CHESTER 

"ly  1888.     m  Pa.  State,  4U.^ 

ION  on  the  case  against  the  citv  of  Chester,  to  recover  damages 
^^jt^or  personal  injur}-  received  bj-  the  plaintiff,  from  the  explosion  of  a 
inannfa.c.tQry  ot'JireLBorks,  operated  in  that  city.  The  manufactory  was 
j^,.,j-^the  individual  property  of  the  operator,  and  was  located  upon  his 
ground.  The  case  came  before  the  court  upon  a  demurrer  to  the  decla- 
ration. The  plaintiff",  in  the  declaration,  alleged  in  substance  that  it 
was  the  duty  of  the  city  to  have  suppressed  this  manufactory  of  fire- 
works ;  that  this  dut}'  was  neglected ;  and  that,  in  consequence  of  this 
neglect,  the  plaintiff  received  his  injuries. 

By  the  special  act  of  incorporation,  the  mayor  and  councils  of  the 
city  were  empowered  to  make  all  such  by-laws  and  ordinances  "  as 
they  may  deem  necessaiy  to  preserve  the  peace  and  promote  the  good 
order,  government,  and  welfare  of  the  said  citv,  and  the  prosperit}-  and 
happiness  of  the  inhabitants  thereof."  By  subsequent  acts  they  were 
empowered  to  prohibit  the  manufacture  of  fireworks  ;   to  prohibit  and 

1  Statemeut  abridged.     Arguments  omitted. —r  Ed. 


\Jo 


■*«^L/^->^ 


/"V  C      *-  IT— ^ 


584 


McDADE   V.    CITY   OF   CHESTER. 


remove  any  nuisance,  whether  on  public  or  private  ground  ;  and  to 
cause  the  removal  of  an}'  nuisance  "  b^'  such  means  as  to  them  sLall 
seem  best." 

The  court  below  gave  judgment  for  defendant  on  the  demurrer. 

Plaintiff  hrrnight  error, 

John  Y.  Bice  {Garyiett  Pendleton  with  him),  for  plaintiff  in  error. 

Orlando  Harvey^  for  defendant  in  error. 

Clark,  J.  [After  stating  the  facts,  and  citing  authorities  applicable 
to  a  case  where  "  a  legal  dut^'  has  been  imposed  bj-  statute  upon  a 
municipal  corporation."]  But  the  dut}-  imposed  must  be  absolute  or 
imperative,  not  such  as  under  a  grant  of  authority  is  intrusted  to  the 
judgment  and  discretion  of  the  municipal  authorities;  for  it  is  a  well 
settled  doctrine  that  a  municipal  corporation  is  not  liable  to  an  action 
for  damages,  either  for  the  non-exercise  of,  or  for  the  manner  in  which, 
in  good  faith,  it  exercises  discretionary  powers  of  a  public  or  legisla- 
tive character.     Dillon  Mun.  Corp.  §  949. 

•  •'••••• 

It  is  likewise  true  that  when  a  power  is  given  to  do  an  act  which 
concerns  the  public  interest,  the  execution  of  the  power,  when  applied 
to  a  public  officer  or  body,  may  be  insisted  upon  as  a  dut}',  although 
the  phraseology  of  the  statute  be  permissive  only  ;  especially  is  this  so 
when  there  is  nothing  in  the  act  save  the  permissive  form  of  expression 
to  denote  that  the  legislature  designed  to  lodge  a  discretionarv  power 
merely.     But  where  the  power  is  lodged  with  persons  exercising,  or  to 
exercise,  legislative  or  judicial  functions,  and  the  subject-matter  of  the 
statute  and  its  phraseoiogy  concur  in   showing    that  the  authority  is 
essentially  discretionary,  no  absolute  duty  is  imposed.     The  true  rule  is 
very  correctly  stated  in  our  own  case  of  Carr  v.  Northern  Liberties, 
35  Pa.  330,  as  follows :  "  Where  any  person  has  the  right  to  demand 
the  exercise  of  a  public  function,  and  there  is  an  officer  or  set  of  offi- 
cers  authorized   to  exercise    that   function,   there  the  right   and   the 
authority  give  rise  to  the  duty  ;  but  where  the  right  depends  upon  the 
grant  of  authority,  and  that  authority  i^  essentially  discretionary,  no 
legal  duty  is  imposed." 

The  language  of  the  several  statutes  above  referred  to  is  plainly  per- 
missive onh'.  ...  It  is  plain,  we  think,  that  all  the  various  matters 
menti(jned  in  the  eighth  section,  including  the  prohibition  and  abate- 
ment of  nuisances,  were  given  into  the  control  of  municipalities  as 
proper  subjects  for  legislation  in  the  government  of  the  city  ;  and  as 
such  action  necessarih-  involves  the  exercise  of  discretion,  no  absolute 
duty  was  imposed  or  intended  to  be  imposed  b}-  the  legislature.  Tlie 
whole  question  is  one  of  legislative  intention,  and  we  find  nothing  in 
these  several  statutes  to  indicate  that  the  legislature  meant  more  than 
is  plainly  expressed. 


u^ 


WYATT   V.    ROME. 


58; 


There  can  be  no  doubt  whatever  that  the  municipal  authorities  of  tlie 
cit\-  of  Cliester  had  full  power  to  act  in  the  premises.  They  hnd  un- 
doubted authority  either  to  limit  or  to  prohibit  altogether  the  manufac- 
ture, sale  or  exposure  of  fire-worlvs  within  tlie  corporate  limits,  and  to 
provide  such  safe-guards  for  the  security  of  its  citizens  as  in  their  judg- 
ment might  be  necessary.  Tliis  subject-matter  had  been  especially 
intrusted  to  their  judgment  and  discretion  in  the  charter  and  acts  of 
assembly  mentioned  ;  but  certainly  no  person  had  any  right  to  demand 
the  exercise  of  this  power  in  any  particular  way  or  to  any  greater  extent 
than  tiie  mayor  and  councils,  in  good  faith  and  in  the  exercise  of  their 
discretion,  might  see  proper  to  provide. 


Judgment  affirmed. 


i 


T-N 


WYATT  V.    ROME. 


1898.     105  Ga.  312. 


Action  for  damages.     Before  Judge  Harris.     City  court  of  Floyd 
county.     December  term,  1897. 

By  ordinances  of  the  City  of  Rome,  every  resident  of  that  city  was 
required  to  be  successfully  vaccinated,  or  to  be  vaccinated  a  sufficient 
number  of  times  to  make  it  evident  that  successful  vaccination  was 
C^"*"^  impossible ;  and  upon  failure  or  refusal  of  any  resident  over  fifteen 
years  of  age  to  be  so  vaccinated,  it  was  provided  that  he  should  be 
punished  by  fine  or  imprisonment.  At  council  meetings  in  August, 
1897,  it  was  ordered  that  these  ordinances  be  immediately  enforced 
and  be  published ;  and  that  five  physicians  be  employed  to  assist  the 
city  physicians  in  vaccinating  all  persons  who  had  not  been  vaccinated. 
During  the  same  month  one  of  the  physicians  so  employed  approached 
the  plaintiff  in  this  case,  and  insisted  that  plaintiff  show  his  arm, 
which  plaintiff  did.  He  said  plaintiff  would  have  to  be  again  vacci- 
nated, and  on  his  objecting,  informed  him  that  he  would  have  to  sub- 
mit, under  penalty  of  the  city  ordinance.  Plaintiff  then  submitted  to 
the  vaccination,  under  protest.  He  contends  that  the  city  thereupon 
used  upon  his  arm  vaccine  matter  wbicE  was  bad,  poisonous  and  inju- 
rious, and  from  which  blood  poison  resultedjto  his  "greatda,mage  ;' 
that  the  city  bought  and  furnished  to  said  physician  thevaccme  mat- 
ter  that  was  so  used,  which  when  brought  to  the  city  was  not  marked 
•with  the  name  of  any  manufacturer ;  that  all  such  matter  unbranded 
■with  the  name  of  a  manufacturer  is  suspicious,  usually  impure  and  un- 
sound, and  universally  known  to  be  impure  ;  and  that  the  city  was 
negligent  in  using  the  same.  This  action  was  brought  to  recover 
damages  for  the  injury ;  but  the  court  dismissed  it  on  demurrer. 


.»-'*■>■ 


586 
I  to  tb 


( 


"WYATT   V.   KOME. 

Lewis,  J.     The  right  to  prescribe  regulations  looking  to  the  preser- 
vation of  the  public  health  is  one  of  those  sovereign  powers  that  belong 
to  the  State.     This  power  can  be  delegated  by  the  State  to  any  of  its 
subdivisions  of  government,  such  as  a  municipality  or  a  county,  and  in 
the  use  of  it  by  such  subdivisions  they  are  in  the  exercise  of  a  function 
purely  governmental.     As  a  general  rule  a  subordinate  branch  of  the 
government  is  not  liable  for  injuries  sustained  by  any  one  growintr  out 
of  negligence,  misfeasance,  or  nonfeasance  of  its  officers  and  agents 
who  are  charged  with  the  duty  of  enforcing  laws  or  ordinances  enacted 
for  the  public  good  in  the  exercise  of  a  governmental  function,  and  not 
in  the  exercise  of  a  private  franchise.     The  exceptions  to  this  general" 
rule  are  not  founded  so  much  upon  principle  as  judicial  precedents. 
The  rule  itself  is  based  upon  a  principle  as  old  as  English  law,  that 
"the  King  can  do  no  wrong."     It  is  upon  this  idea  that  the  sover- 
eignty of  a  State  protects  it  against  suits  by  its  subjects,  no  one  hav- 
ing a  right  to  hold  it  liable  for  any  act  of  its  officers  or  agents,  unless 
such  right  is  expressly  granted  by  the  State  itself.     When  a  munici- 
pality exercises  a  governmental  power  conferred  upon  it  by  the  State, 
it  is  just  as  if  the  State  itself  were  in  the  exercise  of  the  function  thus 
conferred.     Among  the  precedents  which   have  been  established  by 
courts  of  last  resort,  that  are  apparently  exceptions  to  this  general 
rule,  we  have  been  able  to  find  none  that  would  hold  a  city  liable  for 
any  injury  that  may  be  sustained  as  the  result  of  enforcing  measures 
legally  enacted  for  the  promotion  and  preservation  of  the  public  health. 
On  the  contrary,  authority  is  abundant  and  almost  limitless  establish- 
ing the  non-liability  of  a  municipality  in  such  cases.     We  do  not  think 
this  is  an  open  question  in  this  State,  for  it  has  practically  been  decided 
in  the  case  of  Love  v.  Atlanta,  95  Ga.  129.     The   reasoning  for  the 
decision  in  that  case  given  in  the  lucid  opinion  of  Justice  Atkinson 
follows  the  uniform  trend  of  judicial  expression,  and  is  especially  ap- 
plicable to  the  case  at  bar.     On  page  133,  he  says:    "If  the  State 
delegate  to  a  municipal  corporation,  either  by  general  law  or  by  par- 
ticular statute,  this  power,  and  impose  upon  it  within  its  limits  the 
uty  of  taking  such  steps  and  such  measures  as  may  be  necessary  to 
the  preservation  of  the  public  health,  the  municipal  corporation  like- 
wise, in  the  discharge  of  such  dut}',  is  in  the  exercise  of  a  purely  gov- 
ernmental function,   affecting  the  welfare  not  only  of   the   citizens 
resident  within  its  corporation  but  of  the  citizens  of  the  common- 
wealth generally,  all  of  whom  have  an  interest  in  tlie  prevention  of 
infectious  or  contagious  diseases  at  any  point  within  the  State,  and 
in  the  exercise  of  such  powers  is  entitled  to  the  same  immunity  against 
suit  as  the  State  itself  enjoys."     Upon  the  same  line,  and  practically 
in  point,  we  cite  the  following  as  a  few  of  the  many  decisions  and 
authorities  on  this   subject.      15  Am.   &  Eng.  Enc.  L.   1164-5,  with 
citations;   2  Dill.  Mun.  Corp.  §977;  Tied.  Mun.  Corp.  §332;   Sher- 
bourne  t\  Yuba  County.  21  Cal.  113;   Summers  v.  Commissioners,  103 
Ind.  262,  in  which  it  is  decided  that  "Counties  are  instrumentalities 


!  are  instrumentalities 


.V^ 


>  ^  W;.*^^^-^ 


-.t^> 


x^^JL^  h^J^AXyM^^ 


-Ki^  ^  -^ij^dbv  "Votj^   ^-^^AAj8,i    "5^^^  ^ 


HALEY   V.    BOSTON. 


587 


of  government,  and  are  not  liable  for  injuries  caused  by  the  negligence 
of  the  commissioners  in  the  selection  of  an  unskilful  or  incompetent 
physician  for  the  care  of  the  poor  " ;  Ogg  v.  Lansing,  35  Iowa,  495j|  in 
which  it  is  ruled  that  "A  city  is  not  liable  for  the  negligence  of  its  offi-l 
cers  or  agents  in  executing  sanitary  regulations,  adopted  for  the  purpose' 
of  preventing  the  spread  of  contagious  disease,  or  in  taking  the  care 
and  custody  of  persons  afflicted  with  such  disease,  or  the  houses  in 
which  such  persons  are  kept."  The  city  in  the  present  case  was  in  the 
exercise  of  a  most  important  function  of  government  in  which  not  only 
the  inhabitants  of  the  city  but  the  public  at  large  were  interested.  The 
measure  in  question  which  it  adopted  looked  to  the  prevention  of  the 
spread  of  a  contagious  and  serious  malady  with  which  it  was  at  the  time 
perhaps  threatened.  To  allow  any  citizen  a  right  of  action  on  account 
of  injuries  real  or  supposed  that  he  may  have  suffered  in  the  interest  of 
the  public  good  would  be  to  paralyze  the  arm  of  the  municipal  govern- 
ment, and  either  render  it  incapable  of  acting  for  the  public  weal,  or 
would  render  such  action  so  dangerous  that  the  possible  evil  conse- 
quences to  it,  resulting  from  the  multiplicity  of  suits,  might  be  as  great 
as  the  small-pox  itself.  Hence  the  wisdom  of  the  law  in  exempting  it 
from  liability  on  such  an  alleged  injury  as  is  set  forth  in  the  petition. 
It  was  not  contended,  either  in  the  pleadings  or  argument,  that  the  City 
of  Rome  did  not  have  the  right  to  pass  the  ordinance  requiring  its  citi- 
zens and  residents  to  submit  to  vaccination.  On  the  contrary,  the  suit 
was  not  based  on  any  alleged  want  of  authority  in  the  city  to  legislate 
on  the  subject,  but  solely  on  the  negligent  manner  in  which  the  city, 
through  its  officers  and  agents,  enforced  this  ordinance. 

Judgment  affirmed.    All  the  Justices  concurring. 


BOSTON. 


191  Mass.  291. 


'Sheldon,  J.  This  is  an  action  of  tort  brought  to  recover  for  per- 
sonal injuries  alleged  to  have  been  received  by  the  plaintiff  through 
the  negligence  of  the  driver  of  a  cart  belonging  to  the  defendant. 
The  driver  drove  the  cart  over  the  plaintiff's  leg  and  broke  it.  There 
was  evidence  of  the  plaintiff's  due  care  and  of  the  driver's  negligence. 
The  judge  ordered  a  verdict  for  the  defendant,  and  the  only  question 
now  raised  by  the  plaintiff's  exceptions  is  whether  the  defendant  can 
be  held  to  be  responsible  for  the  driver's  negligence. 

The  driver  was  employed  by  the  sanitary  division  of  the  street 
department  of  the  city.  This  division  moved  garbage,  house  offal 
and  ashes  from  buildings  in  the  city,  without  charge,  except  that.,a;_fee 
qf_ten  cents  a  barrel,  just  enough  to  cover  the  expenses  of  removing 


588  HALEY   V.   BOSTON. 

them,  was  charged  for  removing  steam  engine  ashes.  No  charge  was 
made  for  removing  ashes  from  dwelling  houses.  From  removing 
engine  ashes,  the  city  received  an  income  of  something  over  $10,000  a 
year,  and  between  $2,000  and  $3,000  a  year  from  the  letting  of  space 
on  scows  of  this  division  to  various  persons  for  the  removal  of  offal 
and  w^aste  matter,  the  sale  of  manure  and  the  rent  of  part  of  a  wharf. 
The  total  expenses  of  this  division  above  income  were  $623,000.  The 
cart  which  ran  over  the  plaintiif  was  loaded  with  ashes  taken  from 
dwelling  houses,  and  there  were  no  steam  engine  ashes  upon  it. 

The   Revised  Ordinances   of    1898   of   the   city  of   Boston  put  ia 
evidence   provide   in  c.    1,    §    8,   that   the    various   departments   are 
' '  placed  under  the  charge  of  the  officers  or  boards  designated  there- 
for, under  the  general  supervision  and  control  of  the  mayor  "  ;  and  ia 
c.  38,  §   1,  that  the  street  department,  among  other  things,   "shall 
remove  from  yards  and  areas,  when  so  placed  as  to  be  easily  removed, 
all  ashes  accumulated  from  the  burning  of  materials  for  heating  build- 
ings or  for  domestic  purposes,  all  house  dirt,   house  offal,   and  all 
noxious  and  refuse  substances."     The  ordinances  also  provide  in  c.  47, 
-♦^  ^      I  §  18,  that  '*  no  person,  other  than  employees  of  the  city  engaged  in 
oT»«^^    I  public  work,  shall,  in  any  street,  carry  house  dirt,  house  offal  or  other 
•-J^**— ^     I  refuse  matter,    except  in  accordance  with  a  permit  from  the  board 
^vpi^v-a-^.'of  health." 

The  general  rule  is  well  settled  in  this  Commonwealth  that  a  city  or 
^jJiJlH^      town  which  voluntarily  undertakes  work  of  a  commercial  character, 

^ n,tJ-Vfrom  which  it  sepks  to  derive  revenue  or  otuer  special  advantage, "is* 

1  liable  like  a  private  employer  for  the  negligence  of  its  servants  or 

agents  who  are  engaged  therein.  JJuggan  v.  J^caoody,  iin  iviass.  i54y. 
Little  V.  Holyoke,  177  Mass.  114.  D'Amico  v.  Boston,  176  Mass.  599. 
Lynch  v.  Spriyigfield,  174  Mass.  430.  So,  too,  if  it  has  chosen  to  take 
the  work  of  repairing  or  constructing  a  street  or  bridge  out  of  the 
charge  of  the  officers  designated  bylaw,  anditself  to  assume  direct  con- 
trol of  the  work,  it  ma3^be  held  liable  for  the  negligence  of  the  servants  or 
agents  whom  it  employs  for  that  purpose.  Butmcm  v.  Newton,  1 79  Mass. 
1.  Collins  \.  Greenfield,  172  Mass.  78,  81.  Dohertyy.  Braintree,  148 
Mass.  495.  Waldron  v.  Haverhill,  143  Mass.  582.  Deane  v.  Ran- 
dolph, 132  Mass.  475.  Hawks  v.  Charlemont,  107  Mass.  414.  So  it 
may  be  held  for  negligence  in  the  construction  of  water  works  or  • 
the  laying  of  water  pipes.  Lynch  v.  Sj^^ringfield,  174  Mass.  430.  Fox 
v.  Che/sea,  171  Mass.  297.  Stoddard  v.  Winchester,  157  Mass.  567. 
Perkins  v.  Lawrence,  136  Mass.  305.  Hand  v.  Brookliiie,  126  Mass. 
324.  Like  liability  has  been  held  to  exist  in  the  case  of  appliances 
and  supplies  used  for  the  lighting  of  streets, _on  the  ground  that  one  of 
the  purposes  aimed  at,  at  least  incidentally,  is  to  facilitate  the  use 
of  the  public  ways  for  which  the  city  is  responsible,  and  to  guard 
against  the  liability  that  might  exist  for  accidents  caused  by  any 
defect  therein.  Dickinson  v.  Boston,  188  Mass.  595.  Sullivan  v.  Holy- 
oke,  135  Mass.  273.     IVIany  of  these  cases  have  been  put  on  the  ground 


,^JU>J^ 


HALEY   V.   BOSTON.  589 

that  the  enterprise  eDgao;ecl  in  was  partly  of  a  commercial  character. 
irom  which  revenue  or  other  advantage  was  expected  to  be  realized.        ^ 
And  where  this  element  exists,  liability  has  been  maintained  altnougnl  €iJ«^j-«>*' 
the  work  engaged  in  was  only  partly  of  the  nature  of  a  business  enter- 1    ^^^^oV^J^ 
prise,  being  incidental  both  to  public  and  to  commercial  undertakings.       (^-^iiSzj 
Davies  v.  Boston,  190  Mass.  194,  decided  since  'this  case  was  argued.     <i-«rw-w->rJ 
Dnggan  v.  Peabodjj,  187  Mass.  349.     Collins  v.  Greenfield,  172  Mass. 
78.     Nefv.  Wellesley,  148  Mass.  487.     Oliver  \.  Worcester,  102  Mass. 
4'89.     The  liability  for  negligence  in  the  construction  or  maintenance 
of  sewers  comes  under  this  doctrine.     Manning  v.   Springfield,   184 
Mass.  245.     O'Brien  v.    Worcester,  172  Mass.  348.     But  these  excep- 
tions   never   have   been    held    in   this    Commonwealth   to  affect   the 
general  rule  that  a  city  or  town  is  not  to  be  held  to  any  liability  for 
the  negligence  of  persons  employed  by  it  in  work  merely  of  a  pub- 
lic character  required  or  authorized  to  be  done  and  undertaken  without 
compensation  in  the  performance  of  a  public  duty.      Taggurt  v.  Fall 
River,  170  Mass.  325.     Kelley  v.  Boston,  186  Mass.  165.      Tindley  v. 
Salem,  137  Mass.  171.      Pratt  v.  Weymouth,  147  Mass.  245.      Hafford 
V.  New  Bedford,  16  Gray,  297.     And  this  general  principle  of  exemp- 
tion from  liability  extends  to  negligence  of  persons  employed  in  carry- 
ing out   undertakings  performed    under  authority  of   law    in    behalf 
merely  of  the  public  health,  though  of  a  character  for  which  liability 
otherwise  might  be  maintained.     Harrington  v.  Worcester,  186  Mass. 
594.     Benton  v.  Trustees  of  Boston  City  Hospital,  140  Mass.  13. 

It  becomes  material  then  to  determine  what  is  the  character  of  this  <2.*«^vv*rj>rii 
work  of  removing  ashes  from  dwelling  houses ;  and  it  seems  to  us  to  \  »■»  *'~ft-. 
be  work  of  a  public  nature.  It  is  provided  by  statute  that  a  town  may  •  *!  ^  F^ 
contract  for  the  disposal  of  its  garbage,  refuse  and  offal.  R.  L.  c.  25,  'V.^j^Ujo 
§  14.  It  is  not  a  strained  construction  to  include  ashes  under  the 
term  '■'•  refuse.I"  This  word  is  defined  by  the  Century  Dictionary 
as  "that  which  is  refused  or  rejected;  waste  or  useless  matter;  the 
worst  or  meanest  part ;  rubbish."  Ashes  have  been  held  to  be  in- 
cluded within  the  meaning  of  this  word  in  England.  Gay  y.  Cadby, 
2  C.  P.  D.  391.  There  is  nothing  inconsistent  with  this  in  the  point  de- 
cided in  St.  Martin's  v.  Gordon,  [1891]  1  Q.  B.  61,  holding  that  clink- 
ers produced  in  the  furnaces  of  a  hotel  are  not  refuse  of  a  trade, 
manufacture  or  business,  although  Gay  v.  Cadby,  ubi  supra,  is  criti- 
cised in  the  opinions.  So  in  State  v.  Hoivard,  72  Maine,  459,  refuse 
wood  was  held  to  include  sawdust  and  shavings.  And  much  of  the 
reasoning  of  the  court  in  Vandiue,  petitioner,  6  Pick.  187,  as  to  house 
dirt  and  offal,  is  equally  applicable  to  ashes  produced  in  dwelling 
houses.  So  in  Commomvealth  v.  Cutter,  156  Mass.  52.  It  is  not 
material  that  under  the  statute  above  cited  municipal  corporations  are 
simply  authorized  instead  of  being  required  to  attend  to  this  work. 
Tindley  v.  Salem,  137  Mass.  171. 

We   are  of  opinion  that,   unless  this  case  is   to  be  distinguished 
by  reason  of  the  fact  that  a  charge  was  made  for  the  removal  of  steam 


590  HALEY  V.   BOSTON. 

engine  ashes,  it  must  come  under  the  rule  that  cities  and  towns  are  not 
to  be  held  liable  for  negligence,  in  the  words  of  C.  Allen,  J.  in  Tindley 
V.  Salem,  ubi  supra,  "  when,  acting  under  general  laws  applicable  to  all 
cities  and  towns  alike,  they  have  undertaken  a  particular  sei*vice  or 
work,  which  has  no  direct  or  natural  tendency  to  injure  any  indi- 
vidual in  person  or  property,  and  no  element  of  special  corporate 
advantage  as  a  consideration  for  undertaking  it,  or  of  pecuniary  profit 
or  contribution  from  individuals  especially  benefited,  either  by  way  of 
aid  in  the  performance  of  the  work  or  of  compensation  for  its  use 
or  benefit  after  its  completion ;  and  where  no  pecuniary  penalty  or 
liability  is  imposed  by  statute  in  case  of  defective  or  negligent  per- 
formance of  the  undertaking ;  but  where  their  action  is  exclusively 
and  purely  as  a  matter  of  public  service,  for  the  general  and  common 
good." 

Nor  do  we  think  that  the  whole  of  this  service  was  commercialized 
because  a  charge,    lust  enough  to  cover  the  expense  involved,  was 
^^ Jj^mjAk^^^^  for  the  removal  of  steam  engine  ashes.     If  this  injury  had  been 
^ ^^  y Viu^caused  by  the  negligence  of  the  driver  of  a  cart  used  for  the  removal 
i;.,^^  I  of  such  ashes,  a  somewhat  different  question  would  arise,  as  to  which 

l^  V**  I  we  express  no  opinion.  It  was  said  in  Murphy  v.  Needham,  176  Mass. 
422,  424,  425,  that  the  subject  of  inquiry  was  the  nature  of  the  duty 
in  which  the  superintendent  who  was  contended  to  have  been  negligent 
was  engaged  at  the  time  of  the  accident ;  and  in  this  case  it  appears 
that  at  the  time  of  the  accident  the  cart  in  question  was  removing  only 
'dwelling  house  ashes.  The  ordinances  of  the  city  are  in  their  terms 
applicable  only  to  house  ashes  in  contradistinction  to  steam  engine 
ashes  coming  from  factories  or  similar  sources.  Revised  Ordinances 
of  1898,  c.  38,  §  1 ;  c.  47,  §  18.  There  js  nothing  to  show  that  steam 
engine  ashes  were  removed  in  the  same  carts,  by  the  same  drivers,  or 
at_the  same  times,  with  house  ashes.  The  latter  were  taken  away  as  a 
matter  of  duty,  solely  for  the  public  good,  under  the  ordinances  above 
quoted  ;  steam  engine  ashes  seem  to  have  been  taken  as  a  matter 
of  contract  merely,  though  doubtless  with  a  view  to  public  convenience. 
The  ordinances  made  a  distinction  between  these  two  kinds  of  ashes ; 
apparently  the  same  distinction  was  observed  in  practice.  It  cannot 
be  said  that  the  same  rule  of  liability  would  apply  to  the  separate 
classes  which  are  thus  distinguished  from  each  other,  or  that  they 
can  be  regarded  as  so  far  constituting  one  subject  matter  that  the  tak- 
ing of  compensation  for  one  of  them  results  in  the  commercialization 
of  both. 

Exceptions  overruled. 


KIPPES   V.    LOUISVILLE. 


KIPPES  V.   LOUISVILLE. 


591 


1910.     U0Ky.42S. 


Carroll,  J.  The  appellant,  who  was  the  plaintiff  below,  averred 
in  a  petition  filed  by  her  against  the  appellee  to  recover  damages  for 
personal  injuries,  that  she  was  injured  by  the  negligence  and  careless- 
ness of  the  agents  and  employees  of  the  city  who  were  at  the  time 
engaged  in  flushing  the  streets  with  a  hose  that  was  in  such  an  unsafe 
and  defective  condition  that  it  burst  and  threw  water  upon  her,  thereby 
causing  her  to  contract  a  severe  cold  that  impaired  her  health. 

In  the  third  paragraph  of  its  answer  the  appellee  city  alleged  that 
the  flusher  referred  to  in  the  petition,  and  the  other  street  flushers 
owned  and  operated  by  it,  were  used  for  the  promotion  and  preserya- 
tion  of  the  health  of  the  people  of  the  city,  and  were  necessary  for 
tfils  purpose,'  as  well  as  for  the  comfort  and  safety  of  the  general  pub- 
lic. That  at  the  time  of  the  accident  complained  of  the  employees  of 
the  city,  or  one  of  its  departments,  in  charge  of  the  flusher,  were  en- 
gaged in  flushing  the  streets  of  the  city,  and  that  for  this  service  the 
city  did  not  receive  or  charge^ajiy  vpTriiinpratir.n  nr  pvr.fit  hnt  ([[(\  the 
work  solely  for  the  promotion  of  the  health,  safety,  and  comfort  of 
the  inhabitants  of  the  city  and  the  general  public ;  and  that  in  using 
the  flusher  it  was  exercising  a  governmental  function  of  the  city. 

To  this  paragraph  a.  rjemurrer  was  interposed,  and  overrulgd,  there- 
upon the  plaintiff  properly  conceiving  that  the  facts  set  out  in  this 
paragraph,  if  it  presented  a  defense,  as  the  lower  court  ruled  it  did, 
would  defeat  a  recovery,  elected  to  stand  by  her  demurrer,  and  the 
petition  was  dismissed. 

It  will  thus  be  seen  that  the  only  question  presented  is,  whether  or 
not  the  flushing  of  the  streets  of  the  city  was  a  public  duty  undertaken* 
by  the  city  in  the  exercise  of  its  governmental  functions,  for  the  benefit 
of  its  people  and  the  public  generally,  or  a  service  performed  by  the 
municipality  for  private  or  corporate  purposes  as  distinct  from  its  dutj^ 
to  the  public  generally. 

It  must  be  admitted  that  many  of  the  distinctions  that  this  court,  as 
well  as  other  courts  of  last  resort,  have  made  between  what  are  desig- 
nated the  public  and  private  powers,  duties,  and  liabilities  of  munici- 
pal corporations,  are  difficult  to  understand.  Nevertheless,  the  line 
of  demarcation  has  been  drawn  with  more  or  less  precision,  and  it  is 
generally  ruled  that  service  similar  in  purpose  and  effect  to  that  the 
city  was  performing  when  the  appellant  was  injured  falls  within  what 
are  called  the  public  or  governmental  duties  of  a  city.  In  fact  we 
have  expressly  held  that  sprinkling  the  streets  of  a  city  is  essential  to 
the  health,  comfort,  and  safety  of  its  inhabitants  as  well  as  the  public 

ts  street§i    Putting  the  service  the  agents  of  the 


generally.  Who  "use 

city,  or  one  of  its  departments,  were  performing  at  the  time  the  plain- 


ijx>-ftJr 


592  HUGHES  V.   MONROE  COUNTY. 

tiff  was  injured,  upon  the  ground  mentioned,  the  decision  of  the  lower 
court  is  supported  by  a  number  of  opinions  delivered  by  this  court  as 
well  as  the  weight  of  authority  in  other  jurisdictions.  Having  v.  City 
of  Cori)igton,  25  Ky.  Law  Rep.  1617;  Twyman  \.  Board  of  Council 
of  ike  City  of  Frankfort,  117  Ky.  518;  Board  of  Park  Commissioners 
V.  Printz^  reported  in  127  Ky.  470  (but  cited  by  counsel  for  appellee 
as  being  in  32  Ky.  Law  Rep.  359) ;  Maydivell  v.  City  of  Louisville^ 
reported  in  116  Ky.  885  (but  cited  by  counsel  for  appellee  as  being  in 
25  R.  1062)  ;  Connolley  v.  Mayor  of  City  of  Nashville,  100  Tenn.  262. 
Wherefore,  the  judgment  of  the  lower  court  is  affirmed. 


■^ 


HUGHES  V.   MONROE  COUNTY,  "x  ^^  fr^  ^         t 
1895.     147  N.  Y.  49.  ^"'^^S^'^rf  C      V^ 

Bartlett,  J.     The  plaintiff  appeals  from  an  order,  made  on  a  mo^    « 
tion  heard  at  the  General  Term  in  the  first  instance,  granting  a  new      ^ 
trial  after  verdict  at  the  Monroe  Circuit  in  her  favor.  ^^ 

The  plaintiff,  an  employee  at  the  Monroe  County  Insane  Asylum,  ^"V. 
was  severely  injured  while  operating  a  machine  known  as  a  steam  ■€»f 
mangle,  which  was  used  in  the  laundry,  a 

At  the  trial  it  was  insisted  on  behalf  of  the  defendant  that  the  ^^ 
county  of  Monroe  was  not  liable  in  any  event;  that,  assuming  its  Ha- JLj* 
bility,  the  plaintiff  had  failed  to  make  out  a  cause  of  action. 

As  we  are  of  opinion  that  the  county  of  Moaroe  is  not  liable  under  f" 
the  facts  as  disclosed  in  this  record,  it  is  unnecessary  to  determine  L 
whether  the  plaintiff  was  entitled  to  go  to  the  jury. 

The  plaintiff  was  injured  February  11,   1891.     Before  this  action     /2-^ 
was  commenced  the  County  Law  of  1892  was  in  force,  but  it  is  un- 
necessary to  examine  its  provisions,  as  the  status  of  the  county  of      ^ 
Monroe   on   the    11th   day   of   February,   1891,    must   determine   its    O^ 
liability.  J 

Prior  to  the  year  1863  the  county  of  Monroe  cared  in  part  for  its  ^*^ 
insane  in  a  department  of  the  county  poorhouse.  By  chapter  82,  Laws  '">\^J^ 
of  1863,  it  was  enacted  that  the  insane  asylum  of  the  county  of  Mon- 
roe should  be  a  separate  and  distinct  institution  from  that  of  the  ^*- 
]\Ionroe  county  poorhouse,  and  the  board  of  supervisors  were  placed  in  -"^-s. 
control  and  authorized  to  elect  a  warden,  who  was  to  hold  office  for  • 
three  years,  and  a  board  of  three  trustees  for  a  like  term.  «r 

The  warden  was  constituted  the  chief  officer  of  the  asylum,  subject  ^^ 
to  the  regulations  established  by  the  board  of  supervisors ;  all  pur- 
chases for  the  asylum  were  to  be  made  by  the  warden  under  the  direc- 
tion of  the  trustees ;  all  contracts  with  the  attendants  and  assistants 
were  to  be  made  in  the  official  names  of  the  trustees ;  the  warden  was 


HUGHES  V.    MONROE  COUNTY.  593 

also  required  to  make  out  and  deliver  to  the  trustees  annually  an  in- 
ventory of  all  property  belonging  to  the  asylum  ;  the  warden  was  also 
authorized  to  make  contracts  for  the  support  of  insane  persons  of  the 
county,  and  by  the  direction  of  the  board  of  supervisors  or  the  trustees 
to  demand  from  the  state  lunatic  asylum  all  persons  who  were  cliarge- 
able  to  the  county  of  Monroe  or  to  any  town  or  city  in  the  county. 

It  was  further  provided  that  no  insane  person  residing  in  the  county 
of  Monroe  and  likely  to  become  a  county  charge  should  thereafter  be 
admitted  to  the  state  lunatic  asylum  without  the  written  consent  of  the 
trustees  of  the  Monroe  county  asylum  or  the  chairman  of  the  board  of 
supervisors. 

By  chapter  633,  Laws  of  1870,  it  was  made  the  duty  of  the  trustees 
to  determine  all  questions  in  relation  to  the  indigent  insane  as  to 
whether  their  maintenance  was  properly  a  charge  upon  a  specified 
town  within  the  county  of  Monroe,  or  upon  the  city  of  Rochester, 
or  upon  the  county  of  Monroe ;  the  trustees  were  also  empowered 
when  any  lunatic,  not  indigent,  was  placed  in  the  asylum,  to  charge 
his  estate,  or  the  person  legally  responsible,  for  his  maintenance  and 
to  collect  the  same. 

It  will  thus  be  observed  that  the  county  of  Monroe,  being  legally 
chargeable  as  one  of  the  political  divisions  of  the  State  with  the  cai-e  of 
its  insane,  saw  fit  in  1863,  with  the  consent  of  the  legislature,  to  under- 
take the  discharge  of  that  duty  through  the  instrumentality  of  a  county 
asylum. 

In  other  words,  the  county  of  Monroe  from  that  time  shared  with 
the  state  the  burden  of  caring  for  the  insane,  withdrew  from  the  state 
lunatic  asylum  all  indigent  insane  for  whose  maintenance  it  was  liabTe 
and  secured  legislation  requiring  all  the  pauper  insane  of  the  county  to 
enter  its  own  asylum.  ~~ 

When  an  insane  person  is  deprived  of  his  liberty  and  the  custody  of 
his  property,  placed  in  close  confinement,  and  separated  from  family 
and  friends,  it  is  an  extreme  exercise  of  the  police  power  by  the  state, 
or  some  political  division  thereof,  for  the  protection  of  society  and 
to  promote  the  best  interests  of  the  unfortunate  victim  of  mental 
alienation. 

It,  therefore,  follows  that  the  county  of  Monroe  while  acting  under 
the  statutes  referred  to,  was  engaged  in  the  discharge  of  a  most  im- 
portant public  duty  and,  consequently,  not  liable  to  the  plaintiff  iu 
damages  by  reason  of  her  injuries.  Dillon  on  Municipal  Corporations 
[4th  edition],  sec.  693;  Addison  on  Torts  [Banks'  ed.],  p.  1298,  section 
1526. 

In  Maxmilian  v.  Mayor  of  New  York  (62  N.  Y.  160),  this  court  laid 
down  the  rules  of  law  that  control  this  case.  The  plaintiff  sought  to 
recover  damages  for  the  death  of  her  intestate,  who  was  killed  by  an 
ambulance  wagon  which  was  driven  by  an  employee  of  the  commis- 
sioners of  charities  and  corrections. 

It  was  held  that  when  the  city  of  New  York  by  legislative  enact- 


594  HUGHES  V.    MONROE  COUNTY. 

ment,  was  required  to  elect  or  appoint  an  ofBcer  to  perform  a  public 
duty  laid  not  upon  it,  but  upon  the  officer,  in  which  it  had  no  private 
interest,  and  from  which  it  derived  no  special  advantage,  such  officer 
is  not  a  servant  or  agent  of  the  municipality  for  whose  acts  it  is  liable 
even  though  the  officer  had  in  charge  and  was  negligently  using  corpo- 
rate property. 

Judge  Folger  said  (page  164)  :  "  There  are  two  kinds  of  duties 
which  are  imposed  upon  municipal  corporations ;  one  is  of  that  kind 
which  arises  from  the  grant  of  a  special  power  in  the  exercise  of  which 
the  municipality  is  as  a  legal  individual;  the  other  is  of  that  kind  which 
arises,  or  is  implied,  from  the  use  of  political  rights  under  the  general 
law,  under  the  exercise  of  which  it  is  as  a  sovereign.  The  former 
power  is  private  and  is  used  for  private  purposes ;  the  latter  is  public 
and  is  used  for  public  purposes.  Lloyd  v.  The  Mayor^  5  N.  Y.  374. 
.  .  .  But  where  the  power  is  intrusted  to  it  as  one  of  the  political 
divisions  of  the  state  and  is  conferred  not  for  the  immediate  benefit  of 
the  municipality,  but  as  a  means  to  the  exercise  of  the  sovereign  power 
for  the  benefit  of  all  citizens,  the  corporation  is  not  liable  for  non-user, 
nor  for  misuser  by  the  public  agents.  Eastman  v.  Meredith,  36 
N.  H.  284." 

In  the  case  at  bar,  it  is  true,  we  are  not  dealing  with  a  municipal 
corporation,  for  in  February,  1891,  the  county  of  Monroe  was  a  politi- 
cal division  of  the  state,  and  at  most  only  a  quasi  corporation ;  but, 
nevertheless,  the  reasoning  in  the  opinion  just  cited  is  applicable. 

By  the  act  of  1863  the  county  of  Monroe,  through  its  board  of  super- 
visors, was  required  by  tlie  legislature  to  elect  a  warden  and  trustees 
of  its  insane  as^'lum  to  perform  an  important  public  duty  in  which  it 
had  no  private  interest,  and  from  which  it  derived  no  special  advan- 
tage. The  warden  and  trustees,  when  so  elected,  were  in  no  legal 
sense  the  agents  of  the  county  of  Monroe,  but  were  public  officers 
engaged  in  the  discharge  of  duties  which  involved  the  exercise  of-  the 
police  power,  and  in  which  the  general  public  were  interested. 

While  the  county  of  Monroe,  by  its  board  of  supervisors,  was  em- 
powered to  enact  general  rules  and  regulations  for  the  government  of 
the  asylum,  and  to  elect  its  warden  and  trustees,  it  had  no  power  to 
interfere  directly  with  the  management  of  the  institution  unless  the 
warden  so  elected  was  guilty  of  misconduct,  when  he  could  be  re- 
moved by  the  board  of  supervisors. 

The  non-liability  of  counties  and  also  of  municipal  and  other  corpo- 
rations having  special  charters  for  the  acts  of  their  officers  when  en- 
gaged in  the  discharge  of  public  duties,  and  to  that  extent  exercising 
acts  of  sovereignty,  is  established  by  many  cases.  Ensign  v.  Super- 
visors of  Livingston  County,  25  Hun,  20  ;  Alamango  v.  Supervisors  of 
Albany  Comity,  25  id.  551  ;  ffayn  v.  The  Mayor,  70  N.  Y.  459;  Smith 
V.  City  of  Rochester,  76  id.  506 ;  Benton  v.  Trustees  of  Boston  City 
Hospital,  140  Mass.  13;  Curran  v.  The  City  of  Boston,  151  id.  505. 

The  learned  counsel   for  the  plaintiff,   evidently  appreciating   the 


MELKER  V.  NEW   YORK. 


595 


force  of  the  general  rule  to  wliich  we  have  adverted,  sought  to  show 
that  the  case  at  bar  was,  by  reason  of  special  facts,  not  within  its 
operation. 

It  is  insisted  that  the  defendant,  at  the  time  of  this  accident,  was 
not  only  caring  for  the  pauper  insane  of  Monroe  county,  but  also  for 
other  patients  through-contracts  made  for  that  purpose.  ^       | 

There  is  no  evidence  that  the  county  of  Monroe  was  caring  for  in- 1  Cer**"^^ 
sane  patients  not  residing  in  the  county,  for  a  consideration,  but  if  |>^  <Ujcgvs.^ 
such  were  the  case  it  would  be  without  warrant  of  law,  as  we  think  a  M^  o^»>v^3^^ 
fair  construction  of  section  seven  of  chapter  82  of  Laws  of  1863,  limits!  *''*''*Jt.'\prv 
the  contracts  to  be  made  "to  any  individual  of  said  county"  who*  >xr>>  •Aft'** 
wishes  to  contract  as  to  the  care  of  the  insane  of  Monroe  county.  w>'*-«»~' 

There  can  be  no  doubt  that  the  committee  of  a  lunatic,  or  any  one  .  Pj^^.^'X^^ 
legally  liable  to  support  him,  should,  in  the  first  instance,  be  required  I  ^rv-*-o-*"  f^-* 
to  pay  for  his  maintenance,  and  the  income  derived  in  this  manner  is  I  w-^/-,~35A~ 
in  no  sense  a  source  of  profit  to  the  county  so  that  it  would  be  deemed  |  <r''*"^A  -  v.  ^ 
in  law  as  conducting  a  private  business.  T— V^ 

We  may  also  consider  in  this  connection  the  suggestion  that  as  the 
asylum  received  a  small  sum  annually  from  the  sale  of  surplus  farm  Qk,_^  ^a. 


products  it  was  to  be  treated  as  engaged  in  a  private  enterprise  result 
ing  in  profits 

The  revenue  derived  from  both  of  the  sources  referred  to  is  merely 
incidental  and  tenas  to  some  little  extent  to  lessen  the  public  burden 
assumed  by  tbe  county  of  Monroe!  Cur  ran  v.  City  of  Boston,  151 
Mass.  505,  510  ;  Alamango  v.  Board  of  Supervisors  of  Albany  County, 
25  Hun,  551,  552,  553  ;  People  ex  rel.  Society  of  the  New  York  Hospital 
V.  Purely,  126  N.  Y.  679,  and  58  Hun,  386. 

We  have  considered  the  other  suggestions  of  counsel  for  appellant 
contained  in  his  brief  and  consulted  the  authorities  to  which  he  refers, 
but  find  nothing  to  take  this  case  fi'om  the  operation  of  the  general 
rule. 

The  order  of  the  General  Term  should  be  aflSrmed  and  under  the 
stipulation  of  plaintiff  judgment  absolute  ordered  for  the  defendant  dis- 
missing the  complaint  on  the  merits,  with  costs  to  defendant  in  all  the 
courts. 

All  concur,  except  Haight,  J.,  not  sitting. 

Ordered  accordingly. 

jy^ 

^lELKER   V.   NEW   YORK, 


^ 


\ 


'^.;^ 


''>^' 


>^^ 


Jk>-  t 


1908.     190  .V.  y.  481. 

ANN,  J.^  This  action  was  brought  to  recover  damages  for  per- 
sonal injuries  alleged  to  have  been  sustained  by  the  plaintiff  through 
the  fault  of  the  defendant.     Tlie  complaint  contains  two  counts,  one 

1  Arguments  omitted.  —  Ed. 


^^ 


596  MELKER   V.    NEW   YORK. 

IS  tb/uLo»»»^alleging  negligence,  which  was  not  relied  upon  at  the  trial,  and  the 
!  -»  <sy,<*  jother  a  nuisance,  as  the  ground  of^covery.  The  action  involves  the 
liability  of  the  defendant  for  an  explosion  of  fireworks  on  Madison 
avenue,  adjoining  Madison  square,  on  the  evening  of  election  day,  in 
November,  1902,  after  the  board  of  aldermen  had  adopted  a  resolution 
suspending  the  ordinances  relating  to  the  discharge  of  fireworks,  "so 
j^  9^    v.«»      I  far  as  they  may  apply  to  the  meetings  and  parades  of  political  parties 


j^^^Aa^    •   for  associations  during  the  campaign  of  1902."     The  case  is  a  compan- 
^--<-oJ^  ion  to  one  recently  decided  by  us  relating  to  the  same  accident.     Lan- 

-«JJ<-s-i — ^-dau  V.  City  of  Neio  York,  180  N.  Y.  48.    Upon  the  trial  of  that  action 
^  it   was  not  disputed  that  "  the  National  Association  of  Democratic 

Clubs,  a  political  organization,  had  a  parade  on  the  evening  of  Novem- 
ber 4th,  1902,  and  its  officers  arranged  to  have  a  display  of  fireworks 
on  Madison  avenue  between  Twenty-third  and  Twentj'-fifth  streets  in 
connection  therewith."  Upon  the  trial  of  this  action  the  allegation  as 
to  a  parade  by  a  political  organization  was  disputed  and  evidence  was 
given  by  both  parties  upon  the  proposition  so  that  it  became  a  ques- 
tion of  fact  for  the  jury.  In  other  respects  the  leading  facts  were  the 
same  in  both  cases. 

Madison  avenue,  at  the  point  in  question,  "  is  a  wide  street,  bounded 
on  the  west  by  Madison  square,  a  park  of  seven  acres,  where,  as  well 
as  in  the  adjoining  streets,  75,000  people  assembled  to  receive  the 
election  returns  and  witness  the  parade.  They  stood  closely  crowded 
in  the  park  and  on  both  sides  of  Madison  avenue.  The  fireworks, 
consisting  of  mortars,  bombs,  rockets  and  the  like,  were  arranged  in 
six  parallel  rows  in  the  middle  and  on  the  west  side  of  the  avenue, 
commencing  about  twelve  feet  from  the  curb.  .  .  .  Thev  filled  the 
middle  of  Madison  avenue  from  Twenty-fourth  to  Twenty-fifth  streets. 
The  bombs  were  fired  from  mortars  made  of  steel  tubing  and  were  of  a 
kind  that  had  been  frequently  used  before  without  serious  results." 
Between  nine  and  ten  o'clock  in  the  evening  some  of  the  fireworks  ex- 
ploded from  a  cause  not  disclosed  by  the  evidence  and  the  plaintiff 
was  injured. 

The  case  was  submitted  to  the  jury  under  the  instruction  that  in 
order  to  render  a  verdict  for  the  plaintiff  they  "  must  find  that  there 
was  a  meeting  or  a  parade  of  a  political  party,  or  a  political  associa- 
tion, and  that  the  fireworks  were  discharged  in  connection  with  this 
^A-CJLukM.*<\P^''^^^®  or  meeting,"  to  which  no  exception  was  taken.     The  trial  court 
js  i»   -^     '     lurther  charged  the  jury  that  they  should  "  determine  whether  or  not 
•     *  the  fireworks  that  were  then  exposed  in  the  city  of  New  York  consti- 

tuted a  nuisance,"  and  that  if  they  were  a  nuisance  the  defendant  was 
liable,  to  which  an  exception  was  taken. 
jM^««^o.a^  The  plaintiff  requested  the  court  to  charge  that  "fireworks  placed 
au— *•  ^W*<  upon  the  surface  of  a  great  thoroughfare,  in  the  midst  of  a  large  city, 
■w4&  ¥/<^  where  a  vast  multitude  of  people  is  assembled,  and  exhibited  and  dis- 
charged there  on  an  extensive  scale,  as  was  done  in  this  instance,  con- 
stitutes a  nuisance  as  matter  of  law."  The  court  refused  to  so  charge 
and  the  plaintiff  excepted. 


MELKEE   V.    NEW   YORK.  597 

The  plaintiff  testified  that  he  went  to  the  place  in  question  for  the 
purpose  of  seeing  "the  election  returns,  the  balloon  and  the  fireworks," 
but  no  instruction  was  given  or  requested  as  to  the  eflfeet  of  his  pres- 
ence as  a  voluntary  spectator  of  the  display.  a 

The  jury  found  a  yerdict  for  the  defendant,  and  the  Appellate  Divi-\'D.  UT^^^ 
sion,  after  unanimously  afBrming  the  judgment   entered  accordingly,  \    \ '  rv*v*-^ 
permitted  an  appeal  to  this  court,  and  certified  that  in  its  opinion  "a 
question  of  law  is  involved  which  ought  to  be  reviewed  by  the  Court  of 
Appeals." 

The  rule  of  unanimous  affirmance  requires  us  to  assume,  for  the  pur- 1  ^^-^^^  ^. 
pose  of  this  appeal,  that  the  exhibition  of  fireworks  in  question  was_not  |'^5]*JL2^'^ 
held  in  connection  with  a  meeting  or  parade  of  a  political  party  or  <  ^a!^I^ 
association,  and  that  there  was  no  nuisance  as  matter  of  fact.     The  only      ^^^"^'^^ 
question  requiring  the  expression  of  consideration  is  whether  upon  the 
conceded  facts  a  nuisance  existed  as  matter  of  law.     Twice,  quite  re- 
cently, we  have  considered  the  question  whether  a  display  of  fireworks 
in  a  public  street  in  the  midst  of  a  large  city  is  a  nuisance.     Speir  v. 
City  of  Brooklyn^  139  N.  Y.  6;  Landau  v.  City  of  Neio   York,   180 
N.  Y.  48. 

In  the  earlier  case  the  exhibition  was  held  at  the  junction  of  two 
narrow  streets  in  a  compact  part  of  the  city  of  Brooklyn,  and  the  dam-  3>-'xA^-<^ 
age  was  caused  by  fire  resulting  from  the  discharge  of  a  rocket  directly    ^lU>-CJu-o-«v 
through  a  window  of  the  plaintiff's  house.     Chief  Judge   Andkews,  'V-«kj^,r\*»r. 
speaking  for  the  court,  said  :  "  The  finding  of  the  trial  judge  that  the       jC^^^^iX 
use  of  the  street  for  the  discharge  of  fireworks  constituted  a  public       (^.'%*««»-** 
nuisance  is  amply  justified  in  view  of  the  circumstances.     It  has  been-^^AJ^  1^1 
decided  in  some  cases  that  the  discharge  of  fireworks  in  the  streets  of     fv-o^-^^Ji 
a  city  or  village  is  a  nuisance  per  se  and  subjects  persons  engaged  in 
the  transaction  to  responsibility  for  any  injury  to  person  or  property 
resulting  therefrom.     Jenne  v.   Sutton^  43  N.  J.  L.  257;  Conklin  v. 
TJiompson,  29  Barb.  218.     It  may  be  doubted  whether  the  doctrine  in 
its  full  breadth  can  be  maintained.     The  practice  of  making  the  dis- 
play of  fireworks  a  part  of  the  entertainment  furnished  b}'  mui.icipali- 
ties  on  occasions  of  the  celebration  of  holidays  or  the  commemoration 
of  important  public  events  is  almost  universal  in  cities  and  villages, 
and  we  are  not  prepared  to  say  that  this  may  not  be  done,  and  that 
streets  and  public  places  may  not  be  used  for  this  purpose  under  the 
supervision  of  municipal  authorities,  due  care  being  used  both  as  to 
the  place  selected  and  in  the  management  of  the  display,  without  sub- 
jecting the  municipality  to  the  charge  of  sanctioning  a  nuisance  and  x 
the  responsibility  of  wrongdoers."     The  final  conclusion  announced  was  o-^^      f^ 
that   the  circumstances  were  such  as  to  authorize  the  trial  court   to  ''*'*'"*'^lx^ 
hold  the  city  liable  for  an  "unreasonable,  unwarranted  and  unlawful    ''\  rxXr'^SJ^ 
use  of  the  streets,"  and  that  such  use  "  was  properly  found  to  consti- 
tute a  nuisance."     The  emphasis  of  the  opinion  rests  on  the  location 
at  tlie  junction  of  two  narrow  streets  and  the  imminent  danger  of  fire 
owing  to  the  contracted  space  and  the  inflammable  nature  of  the  mate, 
rials  used.     Speir  v.  City  of  Brooklyn,  139  N.  Y.  6,  11. 

—      *^*-^     (^X3=:<>aSu,    «r    i'v.<K-*-^   ^>-^Ju^-.^  XA.-s^»— ^  " 


598  MELKER   V.   NEW   YORK. 

^^^_         The  later  case  involved  the  display  of  fireworks  now  under  consider- 

^^^_^    '^  ation,  where  the  space  was  ample,  the  danger  from  fire  comparatively 

'^^-^f^  light,  the  management  in  charge  of  experts  of  high  standing,  the  aeci- 

■***^'^*^     f    dent  of  unknown  origin  and  of  a  kind  not  reasonably  to  be  appre- 

-3S>^  y  hended.     Upon  the  first  trial  of  that  case  the  plaintiff  had  a  verdict, 

rL^st-^Cyo     which  was  reversed  by  the  Appellate  Division,     Landau  v.    Citi/  of 


^^S*^" 


Netv  York,  90  App.  Div.  50.  Upon  the  second  trial  there  was  a  non- 
suit and  the  Appellate  Division  affirmed,  but  we  reversed  and  granted 
a  new  trial  upon  the  ground,  distinctly  announced,  that  "a  case  was 
made  for  the  jury."  In  discussing  the  subject  we  said:  "There  is  a 
distinction,  well  recognized  by  law,  between  the  discharge  of  fireworks 
upon  private  property  and  in  a  public  highway.  There  is  also  a  dis- 
tinction in  this  regard  between  highways,  depending  on  their  location, 
the  extent  of  the  traffic  upon  them  and  the  danger  involved  in  case  of 
accident.  Fireworks  in  certain  streets  may  or  may  not  be  a  nuisance, 
according  to  the  circumstances,  which  usually  present  a  question  of 
fact.  In  the  case  now  before  us  we  have  to  do  with  a  crowded  street, 
near  the  center  of  the  largest  city  on  the  continent,  '  where  any  misad- 
venture in  managing  the  discharge  would  be  likely  to  result  in  injury 
to  persons  or  property.'  Fireworks  exhibited  on  an  extensive  scale  in 
a  great  thoroughfare,  in  the  midst  of  a  large  city,  where  a  vast  multi- 
tude of  people  is  assembled,  if  not  a  nuisance  as  matter  of  law,  may 
properly  be  found  such  as  matter  of  fact.  This  was  so  adjudged  in  the 
Speir  case,  which  is  controlling  in  principle."  We  held  that  "while  a 
municipal  corporation  is  not  liable  for  the  failure  to  pass  ordinances 
prohibiting  the  discharge  of  fireworks  in  the  public  streets,  it  is  bound 
to  exercise  due  care  to  keep  its  streets  m  safe  condition,  and  is  liable 
for  permitting  dangerous  obstructions  or  nuisances  therein."  Landau 
V.  City  o/Neiv  York,  180  N.  Y.  48. 

"We  intimated  that  the  exhibition  might  be  a  nuisance  as  matter  of 
law,  but  all  we  decided  was  that  the  nonsuit  was  improper  and  that 
the  case  should  have  been  sent  to  the  jury.  A  similar  intimation  was 
given  in  another  case,  but  the  actual  decision  was  that  there  was  a 
question  of  fact  as  to  the  alleged  negligence  of  the  defendant.  Crowley 
V.  Rochester  Fireivorks  Co.,  183  N.  Y.  353. 

It  now  becomes  our  duty  to  decide  whether  the  exhibition,  which 
resulted  in  a  frightful  disaster,  was  a  nuisance  as  matter  of  law. 

For  time  out  of  mind  the  term  "  nuisance  "  has  been  regarded  as  in- 
capable of  definition  so  as  to  fit  all  cases,  because  the  controlling  facts 
are  seldom  alike,  and  each  case  stands  on  its  own  footing.  We  are 
not  aided  by  the  classification  into  public  and  private  nuisances,  be- 
cause the  difference  between  them  does  not  depend  on  the  nature  of 
the  thing  done,  but  on  the  fact  that  one  affects  the  public  at  large  and 
the  other  a  limited  number  only.  The  primary  meaning  of  the  word, 
suggested  by  its  derivation,  is  that  which  injures,  or,  in  the  quaint 
phrase  of  ancient  times,  "  that  which  worketh  hurt."  The  injury  may 
bo  to  person  or  property,  to  health,  comfort,  safety  or  morality.  It 
u;ay  be  a  crime.     Penal  Code,  §  385.     Courts  of  high  standing  have 


MELKER   V.   NEW   YORK.  599 

held  that  a  nuisance  at  law,  or  a  nuisance  per  se,  exists  only  when  the  ^^ "  l!ip^ 
act  done  is  a  nuisance  at  all  times  and  under  any  circumstances,  regard-    *'^'"''-^»^-*'~*^ 
less  of  location  or  surroundings.     Hundley  v.  Harrison.,  123  Ala.  292  ; 
Whitmore  v.  Orono  Pulp  &  Paper  Co.,  91  Ikle.   297  ;    Windfall  Mfg. 
Co.  V.  Patterson,  148  Ind.  414.     Other  courts  make  fitness  of  locality 
the  standard  and  give  conti'oUing  effect  to  surrounding  circumstances," 
holding  certain  acts  not  permissible  as  matter  of  law  under  some  cir- 
cumstances, but  permissible  under  others  and  under  others  still  not  per- 
missible if  the  jury  find  them  nuisances  as  matter  of  fact.    The  weight 
of  authority  in  this  state  and  elsewhere  is  in  accordance  with  the  latter 
view,  except  when  the  act  is  malum  in  se,  when  the  surrounding  cir- 
cumstances have  no  bearing  upon  the  question. 

"We  think  that  each  case  must  depend  on  its  own  facts  for  classifica- 
tion as  a  nuisance  at  law,  or  in  fact,  or  neither.  Without  attempting 
a  general  definition  we  ai-e  of  the  opinion  that  asjij^ljp^tn  fiio  fni-]^ 
of  the  case  before  us,  if  the  natural  tendency  of  the  act  complained  of  ' 
IS  to  create  danger  and  inflict  iniury  upon  person  or  property,  it  may 
properly  be  founda  nuisance  as  mni.^^i'^^-.fn.f^  |iut  if  the  act  in  its  in- 
herent nature  is  so  hazardous  as  to  make  the  danger  extreme  and  seri- 
OU8  injury  so  probable  as  to  be  almost  a  certainty,  it  should  be  held  a 
nuisance  as  matter  of  law.  While  this  definition  lies  on  the  border  ol 
the  domain  ol  laci,  any  clefinition  of  a  nuisance  at  law  must  necessarily 
lie  there,  for  it  is  a  fact,  but  so  conclusive  in  legal  effect  as  to  be 
treated  as  a  matter  of  law.  Locality,  surroundings,  methods,  the  de- 
gree of  danger,  and  the  custom  of  the  country  are  the  important  fac- 
tors. The  firing  of  a  cannon  loaded  with  grape  shot,  if  in  a  city  or 
village,  would  be  a  nuisance  as  matter  of  law  ;  if  in  a  remote  place  far 
from  the  habitations  of  man,  it  might  be  a  nuisance  as  matter  of  fact, 
and  if  against  the  face  of  a  precipice,  no  nuisance  at  all. 

"What  were  the  surroundings  and  the  degree  of  danger  reasonably  to 
be  apprehended  from  the  exhibition  in  question,  when  considered,  not 
in  the  light  of  what  actually  took  place,  but  in  the  light  of  what  was 
likely  to  take  place?     It  was  not  at  the  junction  of  two  narrow  streets,    '^<s-*^^a» 
as  in  the  Speir  case,  but  in  a  wide  street  bordering  on  a  park  seven  \  k*-^^-*  ^-^^ 
florps  in  pxt^nt.  with  reasonable  space  for  safe  and" effective  manage-    \     '^'"^*'^  ^ 
ment^   The  display  was  under  the  control  of  experts  of  established     I  0-<>'>i'^ 
skill   and   experience.     The   fireworks   were   all   made   by   a   leading     I  ^ 

manufacturer  of  high  repute.  For  more  than  thirty  years  he  had  given  \ 
similar  displays,  with  similar  pieces,  all  over  the  world,  without  an 
accident  of  moment.  Eepeatedly,  in  Madison  square,  in  Union  square 
and  in  City  Hall  Park,  during  the  Spanish  war,  on  election  nights,  at 
the  opening  of  great  public  works  and  on  other  occasions,  he  had 
given  such  exhibitions  with  no  bad  results.  He  had  never  known  a 
mortar  to  explode  before  and  it  was  the  explosion  of  a  mortar  used  for 
the  purpose  of  firing  bombs  that  caused  the  accident.  All  the  mortars 
had  been  carefully  tested  on  the  day  of  the  exhibition  and  each  re^ 
sponded  to  the  tap  of  the  hammer  with  that  clear  ring  which  indicates 
a  sound  condition.     The  explosion  was  owing  to  some  cause  so  secret 


600  MELKER   V.   NEW  YORK. 

and  unprecedented  that  it  could  not  be  explained.  Army  officers  of 
great  experience  in  testing  explosives  made  many  experiments  with 
similar  mortars  soon  after  the  accident,  at  the  request  of  the  district 
attorney,  but  they  could  not  state  the  cause  of  the  explosion  and  they 
regarded  the  mortars  as  safe.  The  expert  called  by  the  plaintiff,  an 
ex-army  officer  who  had  made  many  tests  in  behalf  of  the  government, 
likened  the  occurrence  to  the  firing  of  a  gun  hundreds  of  times  with- 
out danger,  when  at  last  "  you  suddenly  have  a  burst  that  cannot  be 
explained."  He  looked  for  the  unexpected  and  favored  precautions 
to  meet  what  possibly  might  happen.  He  thought  that  "as  an  extra 
precaution"  space  should  have  been  "  roped  off  for  one  hundred  feet" 
and  that  the  mortars  should  have  been  sunk  below  the  surface  of  the 
ground  so  that  a  possible  explosion  would  do  no  damage.  The  other 
experts  were  of  a  different  opinion,  and  some  thought  that  burying  in 
the  ground  would  increase  the  danger. 

The  occasion  was  one  of  public  rejoicing  by  many  people.  For  gen- 
erations such  exhibitions  have  been  common  thi'oughout  the  country. 
Our  great  national  holiday  never  passes  without  them  in  many  places 
all  over  the  land.  National  victories,  the  victories  of  political  parties 
and  the  success  of  organizations  comprising  a  multitude  of  persons, 
for  time  out  of  mind  have  been  celebrated  by  such  displays.  It  is  a 
common  method  by  which  large  bodies  of  people  express  their  satisfac- 
tion and  joy  over  some  event  they  deem  important.  Fireworks  are 
widely  used  to  express  patriotism,  triumph  and  gladness,  to  celebrate 
public  events,  to  entertain  crowds  of  people  and  for  various  purposes, 
too  numerous  to  mention.  Such  uses  are  no  innovation  but  are  in  ac- 
cordance with  an  old  and  well-settled  custom  of  the  country,  sanctioned 
by  the  practice  of  every  community.  The  custom  may  not  be  wise, 
but  it  is  almost  universal  and  indicates  the  average  judgment  of  our 
[citizens  upon  the  subject. 

An  exhibition  of  fireworks  is  not  malum  in  se,  but  is  evil  or  innocent 
according  to  circumstances.  Unless  malum  in  se,  like  a  disorderly 
house,  for  instance,  a  nuisance  is  a  matter  of  degree.  Thus  we  have 
held  that  the  storage  of  gunpowder  is  not  a  nuisance  per  se  and  that  it 
"depends  upon  the  locality,  the  quantity  and  the  surrounding  circum- 
stances," which  are  for  the  consideration  of  the  jury.  Heeff  v.  Licht, 
80  N.  Y.  579.  A  nuisance  does  not  rest  upon  the  degree  of  care 
used,  for  that  presents  a  question  of  negligence,  but  on  the  degree  of 
danger  existing  even  with  the  best  of  care.  Degree  implies  gradation, 
and  gradation  depends  on  circumstances.  When  the  degree  of  danger 
is  obvious  and  so  extreme  as  to  invite  calamity,  a  nuisance  per  se  ex- 
ists, but  when  the  danger  is  so  secret  in  nature  that  the  cause  of  an 
accident  cannot  be  discovered  and  according  to  all  experience  is 
neither  imminent  nor  extreme,  it  is  not  a  nuisance  per  se,  although 
the  jury  may  find,  it  a  nuisance  in  fact.  When  disinterested  army 
officers,  expert  from  years  of  official  experiments,  testify  that  the  de- 
gree of  danger  was  so  slight  that  they  regarded  the  mortars  as  safe 


MOWEE    V.    INHABITANTS    OF   LEICESTER. 


601 


and  the  only  difference  of  opinion  related  to  the  method  of  nsinj;  them, 
it  would  be  hazardous  to  hold  the  danger  so  inherent  and  the  degree 
of  danger  so  extreme  as  to  make  the  act  a  nuisance  of  itself,  independ- 
ent of  the  attending  circumstances.  If  the  circumstances  are  to  be 
considered,  they  must  be  weighed  in  order  to  get  at  the  degree  of  dan- 
ger and  the  weight  of  evidence  is  for  the  judges  of  fact.  The  circum- 
stances of  this  case  do  not  call  for  the  hard  and  fast  rule  of  a  nuisance 
as  matter  of  law,  but  for  the  judgment  of  a  jury  whether  the  occurrence 
was  a  nuisance  as  matter  of  fact.  The  terrible  but  unprecedented  result 
may  suggest  regulation  or  restraint  by  the  legislature,  but  it  is  safer 
for  the  courts,  following  the  weight  of  authority  throughout  the  country, 
to  leave  such  questions  to  a  jury,  even  at  the  risk  of  inconsistent  ver- 
dicts, rather  than  to  lay  down  a  rigid  and  imlexible  rule,  less  calcu- 
lated to  do  justice  in  a  majority  of  cases. 

The  judgment  appealed  from  should  be  affirmed,  with  costs. 

CuLLEN,  Ch.  J.,  Gray,  Werner,  Hiscock  and  Chase,  JJ.,  con- 
cur ;  Edward  T.  Bartlett,  J.,  absent. 

Judgment  affirmed 


(JU- 


bV 


vi 


.<re 


Negligence  in  Performance  of  a  Municipal  Function. 
MOWER  V.  INHABITANTS  OF  LEICESTER. 

1812.     9  Massachusetts,  237.1 

^^^^^  Action  at  common  law,  to  recover  for  damages  sustained  through 
'v5»^the  defect  of  a  highway  in  the  town  of  Leicester.     Verdict  for  plaintiff. 


X^  Motion  in  arrest  of  judgment 


Blake  and  Lincoln^  for  plaintiff. 

An  injury  arising  from  the  neglect  of  a  duty  enjoined  hy  law,  whether 
on  an  individual  or  a  corporation,  is  a  good  foundation  for  an  action  at 
common  law.  Towns  are  hy  statute  enjoined  to  maintain  in  good  re- 
pair all  highways  within  their  respective  limits:  and  in  case  of  their 
neglect  of  their  duty  in  this  regard,  and  a  special  injury  happening  to 
an  individual  in  consequence  thereof,  they  are  made  liable  to  douMe 
the  damages  sustained  thereby,  after  reasonable  notice.  Statute  of  1 786, 
ch.  81,  sects.  1  and  7  ...  an  action  at  common  law,  for  the  recovery 
of  single  damages  only,  will  well  lie  for  such  an  injury.  .   .   . 

None  of  the  objections,  which  prevailed  in  the  action  of  Russell  <& 
al.  vs.  The  men  of  Dev07i^  apply  in  this  case.  Here  the  town  are  a 
corporation  created  by  statute,  capable  of  suing  and  being  sued.  They 
are  bound  by  statute  to  keep  the  publick  highways  in  repair.  They 
have  a  treasury,  out  of  which  judgments  recovered  against  them  may 

1  Statement  abridged.  —  Ed,    ^  ^ ^  »  ^_ 


602  MOWEK   V.    INHABITANTS   OF   LEICESTER. 

be  satisfied.  They  are  called  upon  to  answer  onl^'  for  their  own  de- 
fault.  The  objection,  that  a  multiplicity  of  actions  would  be  the 
consequence  of  levyiug  the  execution  on  one  or  more  individuals  of 
the  town,  can  have  no  effect  here  ;  since  it  would  equally  apply  to 
ever3'  action  against  a  town  or  parish  :  and  yet  such  actions  are  every 
day  brought  and  supported  without  hearing  of  this  objection.  Besides, 
individuals  so  situated  have  their  remedj^  over  against  the  corporation 
for  the  sum  paid  by  them  ;  and  are  not  put  to  their  action  against  each 
inhabitant  for  his  several  proportion,  as  the  case  referred  to  supposes 
in  the  case  of  an  P>nglish  county. 


o 


Bi(/elow,  for  defendants.  [Argument  omitted.] 
Curia.  The  plaintiff  has  brouglit  his  action  against  the  inhabitants 
of  the  town  of  Leicester,  for  the  loss  of  his  horse,  occasioned  by  the 
neglect  of  that  town  to  keep  a  certain  bridge  in  repair.  The  action  is 
at  common  law  ;  without  alleging  any  notice  to  the  inhabitants  of  the 
defect  in  the  bridge,  previously  to  the  incurring  of  the  damage  b}'  the 
plaintiff.  —  But  it  is  well  settled  that  the  common  law  gives  no  such 
action.  Cori)orations  created  for  their  own  benefit  stand  on  the  same 
ground,  in  this  respect,  as  individuals.  But  mmsi  corporations,  cre- 
ated b}-  the  legislature  for  purposes  of  publick  policy,  ai'e  subject  by 
the  common  law,  to  an  indictment  for  the  neglect  of  duties  enjoined  on 
them  :  but  are  not  liable  to  an  action  for  such  neglect,  unless  the  ac- 
tion be  given  by  some  statute.  The  only  acjjpn  furnished  by  statu^Le 
in  this  case  is  for  double  damages  after  notice,  «&c.  — This  question  is 
full}'  discussed  in  the  case  of  Russell  &  al.  vs.  The  men  of  Devon., 
cited  at  the  bar,  and  the  reasoning  there  is  conclusive  against  the 
action.  Judgment  arrested} 

^  "  In  considering  the  subject  of  the  implied  liability  (by  which  we  mean  a  liability 

^>ja^  (  where  tliere  is  no  express  statute  creating  or  declaring  it)  of  municipal  corporations 

^^^%  to  civil  actions  for  misconduct  or  neqJect  on  their  part,  or  on  the  part  of  their  officers  in 

>l^\j^^  respect  to  corporate  duties,  resulting  in  injuries  to  individuals,  it  is  essential  to  bear  in 

C^^^^"7   mind  the  distinction  pointed  out  in  a  former  chapter,  and  to  be  noticed  again  here- 

f     ^  -  «  )>  -     after,  between  municipal  corporations  proper,  such  as  towns  and  cities  specially  char- 

-T ,    tcred  or  voluntarily  organiziug  under  general  acts,  and  involuntary  quasi  corporations, 

\*C!>^A>i3»**uch  as  townsliips,  school  districts,  and  counties  (as  these  several  organizations  exist 
in  most  of  tlie  States),  including  therein  for  this  purpose  the  peculiar  form  of  organi- 
zation, before  referred  to,  known  as  the  New  England  town.  The  decisions  of  tlie 
courts  in  this  country  are  almost  uniform  in  holdiug  the  former  class  of  corporations 
to  a  much  more  extended  lial)ility  than  the  latter,  even  where  tlie  latter  are  invested 
with  corporate  capacity  and  with  the  power  of  taxation  ;  but  respecting  the  ijrounds 
for  this  difference,  there-is  considerable  diversitv  o£  opinion."    2  Dillon  Mun.  Corp.,  - 

4thed,  s.  961.-ED.       Dl**  frA<»^    ^     <(.S'«(<?9>)'Cv--t^'<>fO(»^y-^*"-^ 


<w^ 


^^,j.y^' 


/vsa-TlTy   OF-v^afiTKOIT   V.    BLJ 


.VCKEBY.  60 


/"> 


.^- 


CITY  OF  DETROIT  v.  BLACKEBY. 

1870.    21  Michigan,  84.1 

Action  against  the  city  of  Detroit  for  an  injury  occasioned  by  defects 
in  a  cross  walk  across  a  public  street. 

[There  was  no  statute  giving,  in  terms,  an  action  against  the  city  for 
damage  occasioned  by  defects  in  streets  ;  but  the  city  was  incorporated 
by  special  charter,  and  had,  under  the  charter,  the  sole  control  of  its 
streets  and  highways,  with  power  to  keep  them  in  repair.] 

In  the  Circuit  Court  the  decision  was  for  the  plaintiff;  and  the  city 
brought  error. 

J.  P.  Whittemore,  for  plaintiffs  in  error. 

Geo.  If.  Frentis.,  and  Theo.  Moineyn,  for  defendants  in  error. 

Campbell,  C.  J.  .  .  .  The  streets  of  Detroit  are  pubUc  highways, 
designed  like  all  other  roads,  for  the  benefit  of  all  people  desiring  to 
travel  upon  them.  The  duty  or  power  of  keeping  them  in  proper  con- 
dition is  a  public  and  not  a  private  duty,  and  it  is  an  office  for  tiie  per- 
formance of  which  there  is  no  compensation  given  to  the  city.  Whatever 
liability  exists  to  perform  this  service  to  the  public,  and  to  respond  for 
any  failure  to  perform  it,  must  arise,  if  at  all,  from  the  implication  that 
is  claimed  to  exist  in  the  nature  of  such  a  municipalit}'. 

There  is  a  vague  impression  that  municipalities  are  bound  in  all  cases 
to  answer  in  damages  for  all  private  injuries  from  defects  in  the  public 
ways.  But  the  law  in  this  State,  and  in  most  parts  of  the  country, 
rejects  this  as  a  general  proposition,  and  confines  the  recovery  to  causes 
of  grievance  arising  under  peculiar  circumstances.  If  there  is  any 
ground  for  recovery  here,  it  is  because  Detroit  is  incorporated.  And  it 
depends  therefore  on  the  consideration  whether  there  is  anything  in  the 
nature  of  incorporated  municipalities  like  this  which  should  sul\ject  them 
to  liabilities  not  enforced  against  towns  or  counties.  The  cases  which 
recognize  the  distinction  apply  it  to  villages  and  cities  alike. 

It  has  never  been  claimed  that  the  violation  of  dutv  to  the  public  was 
any  more  reprehensible  in  tliese  corporations  than  outside  of  them  ;  nor 
that  there  was  an}'  more  justice  in  giving  damages  for  an  injury  sus- 
tained in  a  city  or  village  street  than  for  one  sustained  outside  of  tlie 
corporate  bounds.  The  private  suffering  is  the  same,  and  the  official 
negligence  may  be  the  same.  The  reason,  if  it  exists,  is  to  be  found 
in  some  other  direction,  and  can  only  be  tried  by  a  comparison  of 
some  of  the  classes  of  authorities  which  have  dealt  with  the  subject  in 
iiand. 

It  has  been  held  that  corporations  may  be  liable  to  suit  for  positive 
mischief  produced  by  their  active  misconduct,  and  not  from  mere  errors 
of  judgment.  .  .  .  Thayer  v.  The  City  of  Boston .^  19  Pick.,  511,  was 
a  case  of  this  kind,  involving  a  direct  encroachment  on  private  prop- 

1  Statement  abridged.     Arguments  omitted.  —  Ed. 


g04  CITY    OF   DETROIT   V.    BLACKEBY. 

erty.  .  .  .  Lee  v.  Village  of  Sandy  Hill,  40  N.  Y.,  442,  involved  a 
direct  trespass. 

The  injuries  involved  in  these  New  York  and  Massachusetts  cases 
referred  to  were  not  the  result  of  public  nuisances,  but  were  purely 
private  grievances.  And  in  several  cases  cited  on  the  argument,  the 
mischiefs  complained  of  were  altogether  private.  The  distinction 
between  these  and  public  nuisances  or  neglects  has  not  always  been 
observed,  and  has  led  to  some  of  the  confusion  which  is  found  in  the 
authorities.  In  all  the  cases  involving  injuries  from  obstructions  to 
drainage,  the  grievance  was  a  private  nuisance.  [After  referring  to 
authorities.]  Upon  any  theory  which  sustains  the  liabilit}'  for  such 
grievances,  however,  it  is  manifest  that  the  injury  is  not  a  public  griev- 
ance in  any  sense,  and  does  not  involve  a  special  private  damage  from 
an  act  that  at  the  same  time  affects  injuriously  the  whole  people. 

Another  class  of  injuries  involves  a  public  grievance  specially  injur- 
ing an  individual,  arising  out  of  some  neglect  or  misconduct  in  the 
management  of  some  of  those  works  which  are  held  in  New  York  to 
concern  the  municipality  in  its  private  interests,  and  to  be  in  law  the 
same  as  private  enterprises. 

•  •  •••«•• 

The  cases  in  which  cities  and  villages  have  been  held  subject  to  suits 
for  neglect  of  public  duty,  in  not  keeping  highways  in  repair,  where 
none  of  the  other  elements  have  been  taken  into  the  account,  are  not 
numerous,  and  all  which  quote  any  authority  profess  to  rest  especially 
upon  the  New  York  cases,  except  where  the  remedy  is  statutory. 

[After  citing  various  New  York  cases.] 
\ysn.  S"t  ^^16  ^^^^-  of  Weet  v.  Brockport,  16  iV.  F.,  161,  is  recognized  as 

•uA**?^  the  one  in  which  the  whole  law  has  been  finally  settled,  and  it  is  upon 
*\^  k  jv  the  grounds  there  laid  down,  that  the  liability  is  now  fixed  in  New  York. 
^\>-o-»**<i  The  elaborate  opinion  of  Judge  Selden,  which  was  adopted  by  the 
j»^»,L.,C\  Court  of  Appeals,  denies  the  correctness  of  the  dicta  in  some  of  the 
\jisi^  previous  cases,  and  asserts  the  liability  to  an  action  solely  upon  the 

ground  that  the  franchises  granted  to  muninipal    cnrpornf.ions  are  in 
Taw  a  sufficient  consideration  for  an  implied  promise  to  perform  with 
^^>.  fidelity  all  the  duties  imposed  by  the  charter  ;  —and  that  the  liability  Is 

^_^_^^J5^^  the  same  as  that  which  attaches  against  individuals  who  have  franchises 
in  ferries,  toll-bridges,  and  the  like.  The  principle,  as  he  states  it,  is  :  — 
''That  whenever  an  individual,  or  a  corporation,  for  a  consideration 
received  from  the  sovereign  power,  has  become  bound  by  covenant  or 
agreement,  either  express  or  implied,  to  do  certain  things,  such  indi- 
vidual or  corporation  is  liable,  in  case  of  neglect  to  perform  such  cove- 
nant, not  only  to  a  public  prosecution  by  indictment,  but  to  a  private 
action  at  the  suit  of  any  person  injured  by  such  neglect.  In  all  such 
cases,  the  contract  made  with  the  sovereign  power  is  deemed  to  enure 
to  the  benefit  of  every  individual  interested  in  its  performance." 

lu  order  to  get  at  the  true  ground  of  liability,  the  opinion  goes  on  to 


x6i«JL^  - 


CITY    OF  DETROIT   V.   BLACKEBY.  605 


determine,  jf?rs^  whether  townships  and  other  public  bodies,  not  being  ^  ^   jp- 

incorporated  cities  or  villages,  are  liable,  and  shows  conclusively  that 

thev  are  not.     And  the  Court  arrive  at  this  conclusion,  not  on  the  basis 

of  an  absence  of  dut}-  or  an  absence  of  means,  but  because  their  duties 

are  duties  to  the  public,  and  not  to  individuals.     To  show  this,  full 

:;itations  are  made  from  the  English  cases,  which  were  cited  before  us, 

-»nd  also  from  the  American  cases. 


••••••  oil^O^ 

It  is  admitted  everywhere,  except  in  a  single  case  in  Maryland,  that  *^         ^ 

jhere  is  no  common-law  liability  against  ordinary  municipal   corpora-    flss^*'~* 
iions  such  as  towns  and  counties,  and  that  they  cannot  be  sued  except         y»-©-«*v. 
by  statute. 

It  has  also  been  uniformU'  held  in  New  York,  as  well  as  elsewhere,  that 
public  officers,  whose  offices  are  created  b}'  act  of  the  Legislature,  are 
in  no  sense  municipal  agents,  and  that  their  neglect  is  not  to  be  regarded 
as  the  neglect  of  the  municipalitv.  and  their  misconduct  is  not  charge- 
able against  it  unless  it  is  authorized  or  ratified  expressly  or  by  implica- 
tion. Tills  doctrine  has  been  applied  to  cities  as  well  as  to  all  other 
corporations. 

•  ••••  ••• 

And  the  numerous  cases  which  exonerate  cities  from  liability  for  not 
enforcing  their  police  laws,  so  as  to  prevent  damage,  rest  upon  a  very 
similar  basis. 

•  •••  •••• 

In  the  case  of  Eastman  v.  Meredith.  36  N'.  H.,  284,  the  distinction 
between  the  English  and  American  municipal  corporations  is  clearly 
defined.  The  former  often  hold  special  property  and  franchises  of  a 
profitable  nature,  which  tliey  have  received  upon  conditions,  and  which 
they  can  hold  by  the  same  indefeasible  right  with  individuals.  But 
American  municipalities  hold  their  functions  merely  as  governing 
agencies.  They  may  own  private  property,  and  transact  business  not 
strictly  municipal,  if  allowed  by  law  to  do  so,  just  as  private  parties 
mav,  and  with  the  same  liabilit}-.  But  their  public  functions  are  all  held 
at  sufferance,  and  their  duties  may  be  multii)lied  and  enforced  at  the 
pleasure  of  the  Legislature.  They  have  no  choice  in  the  matter.  They 
have  no  privileges  which  cannot  be  taken  away,  and  they  derive  no 
profit  from  their  care  of  the  public  ways,  and  the  execution  of  their 
public  functions.  They  dififer  from  towns  only  in  the  extent  of  their 
powers  and  duties  bestowed  for  public  purposes,  and  their  improvements 
are  made  by  taxation,  just  as  they  are  made  on  a  smaller  scale  in  towns 

and  counties.  fiAi^  ^OJ 

.  .  .  Because  streets  are  not  private,  and  because,  iu  this  State,  at|  ^^^^  ^ 
least,  no  municipality  can  exercise  any  powers  except  by  State   per-j     "^  ^^ 
mission,  and  every  municipal  charter  is  lialile  to  be  amended  at  pleasure, 
The  charter  of  Detroit  has  undergone  the  most  radical  changes. 

It  is  impossible  to  sustain  the  proposition  that  these  charters  rest  in 
contract.    And  it  is  impossible,  —  as  Judge  Selden  demonstrates,  to  find 


606  CITY   OF   DETROIT    V.    BLACKEBY. 

legal  warrant  for  any  other  ground  for  distinguishing  the  liability  of  one 
municipal  body  from  that  of  another.  There  is  no  basis  in  authority 
for  any  such  distinction  concerning  the  consideration  on  which  their 
powers  are  granted,  and  it  rests  upon  simple  assertion. 

•  ••••••• 

/»-«^^^  It  is  impossible  to  harmonize  the  decision  [of  the  New  York  Court] 

o^  > im'-  4^^  \f\t\\  the  previous  decisions  exempting  corporations  from  responsibility 
fj^^'^r^-^^  -  because  public  officers  were  not  their  agents.  It  is  no  easier  to  sustain 
X *  it  in  the  face  of  the  uniform  decisions  den3'ing  liabilit}'  for  failure  to 

enforce  their  police  regulations.  The  authorities  which  malie  corpora- 
tions liable  on  the  ground  of  conditions  attached  to  their  franchises,  go 
very  far  towards  compelling  them  to  respond  as  absolutely-  bound  to 
prevent  mischief  And  the  general  reasoning  on  which  the  most  of  the 
opinion  rests,  and  the  criticisms  made  upon  former  decisions,  —  which, 
it  is  asserted,  went  altogether  too  far  in  creating  liability,  —  all  are 
designed  to  show,  and  do  show,  very  forcibly  that  simply  as  municipal 
corporations,  —  apart  from  any  contract  theor}',  —  no  public  bodies  can 
be  made  responsible  for  official  neglect  involving  no  active  misfeasance. 
There  is  no  such  distinction  recognized  in  the  law  elsewhere.  In 
City  of  Promdejxce  v.  Clapp^  17  Hoio.  li.,  161,  the  United  States 
Supreme  Court,  through  Judge  Nelson,  held  that  cities  and  towns  were 
alike  in  their  responsibility  and  in  their  immunity.  In  County  Com- 
missioners of  An7ie  Arundel  v.  Duckett^  20  3/c/.,  468,  a  county  was 
held  responsible  to  the  fullest  extent.  In  New  Jersey,  in  Freeholders 
of  Sussex  V.  Strader,  3  Harr.  (18  iVi  e/i),  108  ;  Cooley  v.  Freeholders 
of  Essex,  27  iVi «/[,  415  ;  Liver  more  v.  Freeholders  of  Camdeti,  29  JV.  J., 
245,  and  2  Vroom  i^\  N.  J.),  507  ;  and  Pray  v.  Mayor  of  Jersey  City, 
32  iV.  «71,  394,  the  cases  were  all  rested  on  the  same  principles,  and 
cities  were  exonerated  because  towns  and  counties  were.  The  sugges- 
tion of  Judge  Selden  has  been  caught  at  by  some  courts  since  the  deci- 
sion, and  has  been  carried  to  its  legitimate  results,  as  in  Jones  v.  Hew 
Haven,  34  Conn.,  1,  where  the  damage  was  caused  by  a  falling  limb  of 
a  tree.  But,  so  far  as  we  have  seen,  even  the  cases  which  are  decided 
on  this  ground,  do  not  hold  that  towns  do  not  receive  their  powers  upon 
a  consideration  as  well  as  cities.  That  question  still  remains  to  be 
handled  in  those  courts. 

It  is  utterly  impossible  to  draw  a.x\y  rational  distinction  on  any  snch 
ground.  It  is  competent  for  the  Legislature  to  give  towns  and  counties 
powers  as  large  as  those  granf^^pd  frrTTirrpa  Each  receives  what  is  sup- 
posed to  be  necessary  or  convenient,  and  each  receives  this  because  the 
good  government  of  the  people  is  supposed  to  require  it.  It  would  be 
contrar}'  to  ever}'  principle  of  fairness  to  give  special  privileges  to  any 
part  of  the  people  and  deny  them  to  others  ;  and  such  is  not  the  pur- 
pose of  cit}'  charters.  In  England  the  burgesses  of  boroughs  and  cities 
had  very  important  and  valuable  privileges  of  an  exclusive  nature,  and 
not  common  to  all  the  people  of  the  realm.  The  charters  were  grants 
of  privilege  and  not  mere  government  agencies.     Their  free  customs 


CITY    OF   DETEOIT   V.    BLACKEBV.  607 

and  liberties  were  put  bj-  the  great  charter  under  the  same  immunity 
with  private  freeholds.  But  in  this  State,  and  in  this  country  generally, 
ihey  are  not  placed  beyond  legislative  control.  The  Dartmouth  College 
case,  wjiich  first  established  charters  as  contracts,  distinguished  between 
public  and  private  corporations,  and  there  is  no  respectable  authority  to 
be  found  anywhere,  which  holds  that  either  offices  or  municipal  charters 
generally  involve  any  rights  of  proi)erty  whatever.  The}'  are  all  created 
for  public  uses  and  subject  to  public  control. 

Vie  think  that  itj\ill  require  legislative  action  to  crrnte  any  liability 
to  private  suit  for  non-repair  of  public  ways.  Whether  such  responsi- 
bility should  be  created,  and  to  what  extent  and  under  what  circum- 
stances it  should  be  enforced,  are  legislative  questions  of  importance 
and  some  nicety.     The}'  cannot  be  solved  by  courts. 

Judgment  should  be  reversed  with  costs.      '^L.^>&'~^   v  . 

Chkistiancy  and  Graves,  JJ.  concurred. 

CooLEY,  J.  dissenting.  C«j-ofea-i,(.V 

It  is  unquestionably,  I  think,  a  rule  of  sound  public  policy,  that  a  o>*j5j«>^->  O 
municipal  corporation  which  is  vested  with  full  control  of  the  public  i^^^Li-^'^ 
streets  within  its  limits,  and  chargeable  with  the  duty  of  keeping  them  in  ^^E^C.!: 
repair,  and  which  also  possesses  b\'  law  the  means  of  repair,  should  be  » 

held  liable  to  an  individual  who  has  suffered  injury  b}'  a  failure  to  per- 
form this  duty.  If  we  sat  here  as  legislators  to  determine  what  the  law 
ought  to  be,  I  think  we  should  have  no  difficulty  in  coming  to  this 
conclusion. 

But  we  sit  here  in  a  judicial  capacity,  and  the  question  presented  is, 
what  is  the  law,  and  not  what  ought  the  law  to  be.  This  question  is  to 
be  determined  upon  common-law  principles,  and  the  most  satisfactory 
evidence  of  what  those  principles  are  is  to  be  found  in  the  decisions  of 
the  courts. 

The  decisions  which  are  in  point  are  numerous  ;  the}'  have  been  made   g  -  ruirp^^ 
in  many  different  jurisdictions,  and  by  many  able  jurists,  —  and  there        ofZS^  -W 
has  been  a  general  concurrence  in  declaring  the  law  to  be  in  fact  what       ftjL«^L^«^ 
we  have  already  said  in  point  of  sound  policy  it  ought  to  be.     "NVe  are   JV  <S=<-Vr^^-s» 
asked,  nevertheless,  to  disregard  tli^se  decisions,  and  to  establish  for 
this  State  a  rule  of  law  different  from  that  which  prevails  elsewhere, 
and   different   from    that   which,  I    think,   has   been   understood    and 
accepted  as  sound  law  in  this  State  prior  to  the  present  litigation. 

Tlie  reason  pressed  upon  us  for  such  a  decision  is,  not  that  the 
decisions  referred  to  are  vicious  in  their  results,  but  that  the  reasons 
assigned  for  them  are  insufficient,  so  that,  logically,  the  courts  ought  to 
have  come  to  a  different  conclusion. 

I  doubt  if  it  is  a  sufficient  reason  for  overturning  an  established 
doctrine  in  the  law,  when  its  results  are  not  mischievous,  that  strict 
logical  reasoning  should  have  led  the  courts  to  a  different  conclusion  in 
the  beginning ;  if  it  is,  we  may  be  called  upon  to  examine  the  founda- 
tion of  many  rules  of  the  common  law  which  have  always  passed 
unquestioned. 


608  CITY   OF   DETROIT   V.   BLACKEBY. 

I  concur  full}'  in  the  doctrine  that  ajamueip^J-eerjsoiM 
not  liable  to  an  individual  damnified  by  the  exercise,  or  the  failure  to 
exercise,  a  legislative  authoritY;  and  I  also  agree  that  the  political 
divisions  of  the  State,  which  have  duties  imposed  upon  them  by  general 
law  without  their  assent,  are  not  liable  to  respond  to  individuals  in 
damages  forTneir'net>l6Ct,  unltititj  exurtisijlv  vm\^  So  by  statute.  Upo'n 
these  two  points  the  authorities  are  general!}'  agreed,  and  the  result  is 
well  stated  in  the  opinion  of  the  Chief  Justice. 

The  question  for  us  to  decide  is,  whether  a  different  rule  applies 
where  a  municipal  corporation  exists  under  a  special  charter  which  con- 
fers peculiar  powers  and  privileges,  and  imposes  special  duties,  from 
that  which  prevails  in  the  case  of  towns  and  counties.  The  authorities 
have  found  reason  for  a  oisimcuon,  and  1  am  not  yet  prepared  to  say 
that  their  reason  is  baseless. 

The  leading  case  on  the  subject  is  Henley  v.  The  Mayor  and  Bur- 
gesses of  Lyme  Begis,  whicli  went  from  the  Common  Pleas  through  the 
King's  Bench  to  tlie  House  of  Lords,  and  is  reported  in  5  Bing.^  91  ; 
3  Barn,  and  Ad.,  11,  and  1  Bwg.  JV.  C,  222.  In  that  case  it  appeared 
that  the  King,  b}'  letters  patent,  had  granted  to  the  Mayor  and  Bur. 
gesses  of  Lyme  Regis  the  borough  or  town  of  that  name,  and  also  the 
pier,  quay,  or  cob,  with  all  liberties,  profits,  etc.,  belonging  to  the  same, 
and  remitted_a  part  of  their  anciejit  rent,  expressing  his  will  therein, 
that  the  said  Mayor  and  Burgesses__and  their  successors,  all  and 
singular,  the  buildings,  banks,  sea-shores,  etc.,  within  the  said  borough, 
or  thereunto  belonging,  or  situate  between  the  same  and  the  sea,  and 
also  the  said  pier,  etc.,  at  their  own  costs  and  charges,  should  re[)aiiL. 
niaintaiiL  and  supi)ort.  All  the  courts  held  that  the  defendants,  having 
accepted  the  charter,  became  legally  bound  to  repair  the  buildings, 
banks,  etc.,  and  that  as  this  obligation  was  one  which  concerned  the 
public,  an  action  on  the  case  would  lie  against  them  for  a  direct  and 
particular  damage  sustained  by  an  individual  in  consequence  of  a 
neglect  to  perform  it.  The  reasoning  was,  that  the  things  granted  b}' 
the  charter  were  the  consideration  for  the  repairs  to  be  made  ;  and  that 
the  corporation,  by  accepting  the  letters  patent,  bound  themselves  to  do 
these  repairs.  This  decision  is  the  unquestioned  law  of  England  to  the 
present  time,  and  is  referred  to  with  approbation  in  the  American 
cases. 

I  do  not  understand  this  decision  or  the  previous  and  analogous  one 
o^  Mayor  of  Lynn  v.  Tttrner,  Covp.,  86,  to  be  questioned  in  the  present 
case  ;  but  it  is  contended  that  neither  is  applicable,  because  the  grant 
was  one  for  the  benefit  of  the  corporators,  which  they  might  accept  or 
refuse  at  their  option,  but  which,  if  accepted,  must  be  taken  cum 
onere.,  and  the  acceptance  was  in  the  nature  of  a  covenant  to  perform 
the  dut}'  imposed.  Moreover,  that  duty,  it  is  said,  was  individual,  not 
governmental ;  and  the  responsibility  for  failure  to  perform  it  would  not 
depend  on  negligence,  notice,  or  any  other  contingency  not  expressed 
m  the  covenant ;  and  in  an}'  point  of  view  it  is  argued  that  these  deci- 


CITY   OF   DETROIT   V.   LLACKEBY.  609 

sions  have  no  iriore  bearing  upon  the  question  of  public  duties  and 
public  responsibilities,  than  if  the  grants  to  the  corporations  in  these 
cases  had  been  made  to  individual  residents. 

This  is  not  the  first  time  that  this  view  of  the  cases  referred  to  has 
been  presented  to  the  courts.  It  was  very  fully  examined  b}-  Mr. 
Justice  Selden  in  Weet  v.  Brocl-port^  IG  N.  jT.,  161,  note^  and  in  his 
opinion  there  was  nothing  in  it  which  should  exempt  municipal  corpora- 
tions from  the  principle  declared,  even  when  the  neglect  of  duty  relates 
to  a  governmental  power.  "It  is  well  known,"  he  very  truly  says, 
that  "  charters  are  never  imposed  "p"i  mnnifipaLbodics  except  at  thejr 
urgent  request.  While  the}'  may  be  governmental  measures  in  theorj-, 
they  areTTn  fact,  regarded  as  privileges  of  great  value,  and  the  fran- 
chises the}"  confer  are  usually-  sought  for  with  much  earnestness  before 
they  are  granted.  The  surrender  by  the  Government  to  the  munici- 
pality of  a  portion  of  the  sovereign  power,  if  accepted  by  the  latter, 
may  with  propriety  be  considered  as  affording  ample  consideration  for 
an  implied  undertaking  on  the  part  of  the  corporation,  to  perform  with 
fidelity  the  duties  which  the  charter  imposes."     Ibid.^  171. 

Now  it  does  not  appear  to  me  to  be  a  sufficient  answer  to  this  posi- 
tion, that  the  State  inight^  if  it  saw  fit,  impose  a  municipal  charter 
upon  the  people  without  their  consent  and  even  against  tlieir  remon- 
strance. That  is  not  the  ordinary  course  of  events,  and  the  question 
for  us  to  consider  is  —  What  is  the  legal  significance  of  things  as  thej* 
actually  occur?  We  find,  as  matter  of  fact,  that  people  apply  for  a 
charter  conferring  such  privileges  as  they  deem  important,  in  view  of 
their  actual  circumstances,  and  that  many  of  these  privileges  are  quite 
superior  to,  and  more  valuable  than,  those  possessed  b}'  the  people 
generalh'.  When  the  Legislature  grants  these  privileges  it  imposes 
concurrent  duties.     What  is  the  fair  construction  of  these  acts  of  the 


people  and  the  Legislature  respectively,  —  the  people  in  soliciting  the 
privileges,  and  the  Legislature  in  attaching  the  duties  to  the  grant 
which  it  makes?     This  is  tiie  question  which  we  are  to  consider. 

The  New  York  courts  have  invariably  held  that  when  the  people  of 
the  municipality  accepted  the  charter  which  the}-  had  thus  solicited^ 
Q©ntraci_was  jjupHprl  on  their  part  to  perform  the  corporate  duties. 
Tliey  have  always  denied  that  in  this  respect  there  was  any  difference 
between  a  municipal  corporation  and  a  private  corporation  or  private 
individual,  who  had  received  from  the  sovereignty  a  valuable  grant, 
charged  with  conditions.  —  Hutsonv.  N.  3^,  9  iV".  F.,  163;  Weet  v. 
BrorhporU  16  N.  Y.,  ?iote,\CA  ;  Conrad  v.  Ithaca,  \Q>  N.  Y!,  158  ;  Storrs 
V.  Utica,  17  iV:  r:,  104  ;  Ml/Is  v.  Brooklyn,  32  N'.  T.,  489  ;  Lee  v.  Sandy 
Hill.,  40  N.  y.,  442.  The  same  decision  has  frequently  been  made  in 
other  States.  Meares  v.  Wilmington,  9  Ired.,  73  ;  Pittsburgh  v.  Grier, 
22  Pemi.  St.,  63;  Erie  v.  Schicingle,  Ibid.,  388;  Ross  v.  3Iadi- 
son.  1  Ind.,  281  ;  Stackhovse  v.  LaFayette,  26  Ind..  17;  Smoot  r. 
WetumpJca,  24  Ala.,  112;  Browning  v.  Springfield,  17  III.,  143,  in 
which  the  question  is  very  fully  and  carefully  considered  by  Mr.  Chief 


<^^v-vj-5-J 


610  CITY   OF  DETROIT  V.  BLACKEBY. 

Justice  Scales.  Commissioners  v.  Ducl^ett^  20  Md.^  468;  Savnjer  v. 
Corse,  17  Grat.,  241 ;  Richmond  v.  Long^  Ibid.,  375  ;  Bigelow  v.  Ran- 
dolph,  14  Gray.,  541,  which,  though  not  an  express  authorit}-,  recognizes 
the  doctrine  :  Jones  v.  New  Haven^  32  Conn.,  1  ;  Cook  v.  Milu-aukee, 
recently  decided  b}'  the  Supreme  Court  of  Wisconsin,  and  to  be  found 
in  9  Law  Reg.  R.  S.  263  [24  Wis.,  270]. 

The  same  question  has  also  been  frequently  and  full}'  examined  by 
the  Supreme  Court  of  the  United  States,  and  no  doctrine  is  more  firmly 
settled  in  that  Court  than  tliat  municipal  corporations  are  liable  for 
negligence  in  cases  like  the  present.  It  will  be  sufficient,  perhaps,  to 
refer  to  the  case  of  Weightman  v.  Washington,  1  Black,  39,  in  which 
the  English  and  American  cases  were  examined,  but  the  same  question 
has  frequenth'  been  brought  to  the  attention  of  the  Court  since,  and 
uniformly  with  the  same  result. 

And  it  is  remarkable  that  in  all  the  cases  which  have  upheld  this 
doctrine  tliere  has  scarcely  been  a  whisper  of  judicial  dissent.  It  would 
be  difficult  to  mention  another  so  important  question,  which  has  been 
so  often,  so  carefully,  and  so  dispassionately  examined,  and  with  such 
uniform  result.  In  no  State  is  the  doctrine  of  Henley  v.  Mayor,  etc.^ 
of  Lyme  Regis,  as  applied  in  Weet  v.  Brockport,  denied  except  in  New 
Jersey,  and  in  that  State  the  authorities  I  have  referred  to  seem  to  have 
been  passed  over  in  silence  and  perhaps  were  not  observed. 

We  are  asked,  therefore,  to  overrule  a  rule  of  law  which  is  safe,  use- 
ful and  politic  in  its  operation,  and  which  has  been  generally  accepted 
throughout  the  Union,  not  through  inadvertence  or  by  surprise,  but 
after  careful,  patient  and  repeated  examination  upon  principle,  hy 
many  able  jurists,  who  have  successively-  given  due  consideration  to  the 
fallacies  supposed  to  underlie  it.  For  n^y  own  part  I  must  say  that  the 
fallacies  are  not  clearl}-  apparent  to  my  mind,  and  I  therefore  prefer  to 
stand  with  the  authorities.  And  I  deem  it  proper  to  add  also,  that, 
inasmuch  as  the  rule  of  responsibilit}-  in  question  seems  to  me  a  jus? 
and  proper  one,  I  should  be  inclined,  if  my  judgment  of  its  logical 
soundness  were  otherwise,  to  defer  to  the  previous  decisions,  and  leave 
the  Legislature  to  alter  the  rule  if  they  should  see  fit.-^        r. 

1  [As  to  civil  liability  for  damages  from  defective  streets.]  v> 

"  The  cases  may  be  grouped  into  the  following  classes :  — 

"  First.  Where  neither  chartered  cities  nor  counties  or  other  rjnnsi  corporations 
are  held  to  an  implied  civil  liability.  Only  a  few  States  have  adopted  this  extreme 
view  of  exempting  cities  from  liability  in  this  respect. 

"  Second.  Where  the  reverse  Is  held,  and  both  chartered  cities  and  counties  are 
alike  considered  to  be  impliedly  liable  for  their  neglect  of  the  duty  in  question.  This 
doctrine  prevails  in  a  small  number  of  States. 

"  Third.  Where  municipal  corporations  proper,  such  as  chartered  cities,  are  held 
'jo  an  implied  civil  liability  for  damages  caused  to  travellers  of  a  defective  and  unsafe 
streets  under  their  control,  but  denying  that  such  a  liability  attaches  to  counties  or 
other  quasi  corporations  as  respects  highways  and  bridges  under  their  charge.  This 
distinction  has  received  judicial  sanction  in  a  large  majority  of  the  States,  where  the 
legislation  is  silent  in  respect  of  corporate  liability."  2  Dillon,  Mun.  Corp.,  4th  ed., 
&  999.  — Ed. 


^^^ 


o'donnell  v.  syeacuse. 


M* 


611 


^0^ 


BARTON  V.   CITY  OF   SYRACUSE. 

18G7.     36  New  York,  54. 

BocKEs,  J.  This  is  an  action  on  the  case  for  negligence,  in  which 
the  defendant  is  charged  with  culpabilit}'  in  omitting  to  l^eep  a  sewer 
in  proper  repair,  and  in  suffering  it  to  become  filled  with  dirt  and 
rubbish,  b}'  reason  of  which  the  flow  of  the  water  was  impeded,  causing 
it  to  set  back  through  the  plaintitf  s  drain  into  his  cellar,  to  the  injury 
of  his  propert3\ 

The  referee,  to  whom  the  case  was  referred  to  hear  and  determine, 
directed  judgment  for  the  plaintiff,  which  judgment  was  affirmed  at 
General  Term. 

Bv  the  cit}-  charter,  the  mayor  and  common  eonnoil  werp  authorized 


and  directea  to  construct  sewers  through  the  city,  and  to  keep  them  in 
Tepair.     They   accepted  and   entered   upon    the   performance  of  this 


dut}',  and  constructed  sewers  along  such  of  the  streets  as  were  deemed 
appropriate,  with  a  yiew  to  favorable  and  healthful  drainage.  The 
expenses  were  assessed  upon  the  property  benefited,  as  provided  by 
the  charter,  and  their  superyision  and  control  were  properly  assumed 
by  the  city  goyernraent.  Under  this  condition  of  authority  and  dut}', 
the  municipal  corporation  were  bound,  through  the  proper  officers,  to 
a  faithful  and  prudent  exercise  of  power,  and  carelessness  and  neg- 
ligence in  that  regard  created  a  liability,  which  might  be  enforced  b\' 
any  one  suffering  damages  therefrom.  So  the  law  is  firmly  established, 
that  in  constructing  sewers,  and  in  keeping  them  in  repair,  a  municipaj. 
corporation  acts  rainisteriall}-,  and,  haying  the  authorit}'  to  do  the  act, 
fs  boiTnd  lotllB  e!jg^r(3lS{i  oi  neeniul  prudence,  watchfulness  ana  care 
The  authorities  in  support  of  these  principles  are  too  numerous  and 
famiUar  to  require  particular  comment. 

[Remainder  of  opinion  omitted.] 
c?l_  r*«  iw     «^t>  "_^  g,  j/sa<>A^^  Judgment  aMrmed 


:] 


^L^^ 


O'DOXNELL  V.  SYRACUSE. 


1906.     184  N.   Y.  1. 


Gray,  J.^  The  theory  of  the  defendant's  responsibility,  maintained 
by  the  learned  referee  in  an  opinion,  was  that,  by  practically  taking  pos- 
session of  Onondaga  creek  for  its  municipal  purpose,  it  had  "  converted 
a  natural  watercourse  into  a  public  sewer"  and  its  duty  was  "the 
same  as  if  the  sewer  was  originally  artificial."     Hence,  it  was  "  bound 

1  Arguments  omitted.  —  Ed.  ^ 

iOs:^  I       (T^J^i3*  ^"-o--^   '^'^^-^    C*»-.Jt    0,-^v-*^  0-^s-w-.  ^T^M     ^v^T*— s^'tiN 


r^fe'. 


%^ 


^S  »     m  V 


AO 


CJliCi. 


tt 


612  O'DONNELL  v.    SYRACUSE. 

to  maintain  it  in  a  reasonably  safe  and  efficient  condition,"  and  having 
failed  to  perform  this  duty,  the  failure  was  an  efficient  cause  of  the  in- 
jury to  the  plaintiff's  property.  At  the  Appellate  Division,  this  theory 
of  liability  was  concurred  in.  It  was  thought  that,  from  the  use  made 
of  the  creek,  "  the  city  was  called  apon  to  exercise,  affirmatively,  its 
governmental  functions  to  reduce  to  a  minimum  the  damages  likely  to 
result  from  the  use"  and  that  "  the  affirmative  obligation,  inseparably 
linked  with  this  user,  throws  upon  it  the  burden  of  paying  whatever 
damages  resulted  from  the  overflowage,  although  the  unusual  flood  was 
the  inducing  cause  and  responsible  for  the  greater  proportion  of  the 
damages."  I  am  unable  to  agree  with  the  courts  below  in  this  view  of 
the  city's  responsibility  towards  its  inhabitants.  I  might  suggest  that, 
as  it  was  found  that  the  city's  acts  but  contributed  ^'to  some  extent" 
Io"the  overflow  of  the  creek,  it  was  error  to  hold  it  liable  for  a  damage 
to  the  plaintiff,  to  which  the  acts  of  others,  not  acting  in  concert  with 


■^--xl  to  tne  piaintiii,  to  wnicu  tue  acts  oi  oiners,  not  actmg  in  concert  witti 
.  ,~Lv^^^^"^>  ^^^  contributed._   The  channel  of  the  creek  had  been  obstructed  by 
J^  IKeWji  t-'ie  throwing  in  of  ashes,  ciuders,  dirt  and  rubbish  from  its  banks  and 
by  the  formation  of  bars  of  sand  and  gravel ;  so  that  others  than  the 
^^!3^3^^       city  were,  measurably,  responsible  for  interfering  with  the  channel  of 
,,AA»AAr-'»^  the  stream.     The  municipality  was  chargeable  only  with  that  much  o^ 
*^  *"''*^        the  damage  which  was  caused  by  its  wrongful  acts  ;  and  if  the  damage 
was  incapable  of  separation  and  the  proportions  of  liability  could  not 
be  established,  that  fact  affords  no  reason  for  holding  the  city  respon- 
sible for  the  tortious  acts  of  others.     The  rule  is  discussed  in  Chipman 
v.  Palmer,  (77  N.  Y.  51),  in  the  light  of  both  the  American  and  the 
^^jt^^^^^i  English  cases  and  is  summarized  in  the  statement  that  "  where  different 
5-  vL*j^oL>sl  P^i'ties  are  engaged  in  polluting,  or  obstructing,  a  stream,  at  different 
5j,V7~T    'l  times  and  different  places,  the  whole  damages  occasioned  by  such  wrong- 
<v  oftiLixv- V ul  acts  cannot  be  collected  of  one  of  the  parties."     See,  also,  Sam- 
^jTTC     ffions  v.    City  of  Gloversoille,  175  N.  Y.   346.     I  think  the  rule  is 
y^j^jlj^^Js   applicable  to  this  case;  but  I  prefer  to  place  its  decision  upon  a 
-^^^  'broader  ground  and  to  hold  that  no  responsibility  whatever  lay  upon 
1i^  the  city  for  what  damage  the  plaintiff,  or  others,  similarly  situated, 

^*'*     ^^^mJ^^J  have  sustained  by  reason  of  the  extraordinary  rise  and  overflow 
^•P^^^^^^f  the  creek. 

*  It  will  not,  I  assume,  be  disputed  that  a  municipality  would  not  be 

liable  for  the  consequences  of  a  mere  overflow  of  the  stream,  or  river, 
upon  whose  banks  the  settlement  had  been  made  and  had  grown  into 
the  proportions  of  a  city,  in  the  absence,  of  course,  of  any  conditions 
enjoining  some  duty  with  respect  thereto,  through  the  neglect  of  which 
x"^^"*'^    J  injury  had  been  occasioned.     Indeed,  it  was  conceded  below  that  no 
Vip  fr^^i**^  duty,  ordinarily,  would  be  cast  upon  a  municipality  to  restrain  the 
>.*,_oJ^        I  waters  between  the  banks  and,  hence,  none  to  indemnify  its  citizens 
jn^^-*^        'against  the  consequences  of  freshets,  or  floods.     But  the  argument  is 
that  the  city,  by  its  user  of  Onondaga  creek,  under  its  charter  and  or- 
dinances, and  under  certain  statutes,  came  under  a  responsibility  for  its 
safe  condition.     That  is  to  say,  that  it  had  assumed  a  dominion  over 


O'DONNELL   v.  SYRACUSE. 


613 


the  stream  by  converting  it  to  its  use  for  sewer  purposes  and  was, 
therefore,  under  an  "  athnnative  obligation,  inseparably  linked  with  the 
user,"  of  paying  the  damages  resulting  from  an  overflow.  This  is  a 
broad  proposition  and,  as  I  think,  an  unwarrantable  extension  of  the 
rule  of  municipal  liability.  In  order  that  a  municipality  shall  be  made 
liable  for  causing  an  injury,  it  must  appear  that  some  duty,  incumbent 
upon  it  to  perform,  had  been  neglected,  or  had  been  improperly  dis- 
charged. The  act,  the  omission,  or  commission,  of  which  is  charged 
as  the  cause  of  the  injury,  must  have  been  within  the  scope  of  the  cor- 
porate powers,  as  provided  by  the  charter,  or  by  some  positive  enact- 
ment of  law.  A  municipal  corporation  is  the  delegate  of  sovereign 
power  to  legislate  as  to  the  public  needs  of  a  locality.  It  may  be  said, 
in  a  sense,  to  possess  a  dual  character.  It  acts  in  a  govern  men  iaT 
capacity,  to  the  extent  that  it  exercises  its  powers  in  matters  of  public 


concern,  and  it  acts  in  a  private  capacity,  in  so  far  as  it  exercises  its 
powers,  under  its  by-laws,  for  private  advantage,  in  matters  pertaining 
to  the  municipality,  as  the  proprietor  of  the  variona  works  and  pyoppr- 
ties.  Lloyd  v.  Mayor,  etc.,  of  N.  F^.,  5  N.  Y.  369.  It  exercises  the 
governmental  powers  delegated  by  the  state  over  the  particular  politi- 
cal subdivision  thereof  and  it  cannot  be  held  liable  for  the  non-exercise 
of,  or  for  the  manner  in  which  it  exercises,  those  discretionary  powers, 
which  are  classed  as  of  a  public,  or  legislative,  character.  But  where 
the  duty  is  a  corporate  one,  having  relation  to  its  special  interests,  and 
it  is  absolute  and  perfect,  and  not  discretionary  in  its  nature,  in  the 
performance  of  which  the  plaintiff  has  an  interest,  his  action  will  lie 
against  the  municipality  for  the  damages  occasioned  by  a  failure  to 
perform.  In  other  words,  if  the  duty  be  judicial  in  its  nature,  as  call- 
ing for  the  exercise  of  judgment,  no  liability  rests  upon  the  municipality 
for  non-performance  ;  whereas,  if  it  be  of  a  ministerial  nature,  neglect 
to  perform  it  will  render  the  municipality  responsible  to  one  injured 
thereby.  See  Dillon  on  Municipal  Corporations,  §§  753,  778;  Griffin 
V.  Mayor,  etc.,  of  N.  Y.,  9  N.  Y.  456  ;  Lloyd  v.  Mayor,  etc.,  of  N.  Y., 
supra.  It  is  a  principle  of  municipal  responsibility,  early  accepted  I 
from  the  common  law,  in  this  state,  that  in  the  acceptance  of  a  charter! 
sufficient  consideration  is  found  in  the  grant  of  powers  and  franchises! 
to  support  an  implied  undertaking  to  perform  what  duties  are  imposed,! 
which  will  enure  to  the  benefit  of  every  individual  interested  in  their 
performance.  Weet  v.  Trustees  of  Village  of  Brockport,  16  N.  Y.  161, 
note  ;  Cain  v.  City  of  Syracuse,  95  ib.  83.  But,  in  the  application  of 
the  principle,  the  distinction  is  to  be  borne  constantly  in  mind  that  a 
corporate  duty  is  not  always  absolute.  For  instance,  if  it  relate  to 
legislation  in  the  public  interest,  or  to  the  undertaking  of  some  work 
of  a  public  nature,  which  it  has  not  been  commanded  to  do  by  the  state, 
however  comprehensive  of  the  matter  the  powers  conferred  by  charter, 
or  by  positive  legislative  enactments,  may  be,  the  duty  is,  necessarily, 
discretionary,  because  within  the  exercise  of  a  deliberate  judgment. 
Nor  does  it  follow  that,  although  there  may  be  an  admitted  corporate 


614  O'DONNELL  v.   SYRACUSE. 

control  of  the  subject,  an  absolute  and  imperative  duty  arises.     Cain 
V.  City  of  Syracuse,  supra. 
-.o-iL  »■**->-       I  think  we  may,  at  once,  dismiss  from  our  minds  any  consideration 
j»A  ^  yJbXJt-of  the  argument  that,  because  Onondaga  creek  had  been  declared  a 
^_,,,j_^^V-|        public  highway  by  statute,  a  peculiar  duty  had  devolved  upon  the  city 
;;JG»  vV*    in  consequence,  pertinent  to  this  case.     The  ordinary  rule  of  municipal 
^~   x»A^  obligation,  with  respect  to  the  care  and  maintenance  of  highways, 
^k    (i      under  the  statute,  does  not  apply  and  no  duty,  ordinarily,  rests  upon 
*  ti>^f-,StjAj|  the  municipality,  through  whose  boundaries  a  river  or  stream  passes,  in 
v^  whole  or  in  part,  to  keep  it  in  a  safe  condition,  or  free  from  obstruc- 

tions not  of  its  own  causing.     Seaman  v.  Mayor,  etc.,  of  N.   Y".,  80 
N.  Y.  239  ;   Coonley  v.  City  of  Albany,  132  ib.  145. 

In  the  discussion  of  this  case,  I  accept  its  facts,  as  they  are  estab- 
lished by  the  findings  of  the  trial  court ;  and  I  find  the  theory  of  the 
plaintiff's  recovery  to  be  contained,  substantially,  in  this  proposition : 
that  a  peculiar  responsibility  rested  upon  the  city  of  Syracuse,  by  rea- 
son of  an  assumption  of  corporate  dominion  over  the  creek,  in  using  it 
as  a  part  of  its  sewerage  system,  under  provisions  of  its  charter  and  of 
special  legislative  enactments ;  and  that  the  neglect  to  exercise,  or  the 
imperfect  exercise  of,  the  power  effectively  to  protect  the  inhabitants 
against  an  overflow  of  the  stream  made  the  city  liable  in  damages  to 
any  one  injured  thereby.     The  liability  of  the  city  was  predicated  upon 
the  notion  of  its  negligence  in  the  performance  of  municipal  duties  in- 
cumbent upon  it,  with  respect  to  the  maintenance  of  the  channel  of  the 
.<^^,„«^V-^      creek.     No  negligence  is  found,  nor  appears,  so  far  as  mere  construc- 
,,wi,v^j-*>5i^  fftion  of  sewers,  or  of  bridges,  is  concerned.     It  was  the  effect  of  the 
-%.  ^*"-**'    Kormer,  as  increasing  the  flow  of  the  stream,  that  is  made  to  support 
»*— *-^;^-^2~jhe  charge  of  negligence  in  not  providing  for  the  adequate  carriage  of 
*V^|^^        |j^g  waters  from  freshets  and  floods.     As  to  the  bridges,  their  construc- 
sv^il3*^^^**\  ^^^"^  ^^^  authorized,  and  it  was  an  unquestionable  duty  of  the  munici- 
pality,  whose  territory  the  stream  separated,  to  construct  them  as 
connections  and  portions  of  the  streets,  or  highways.     No  liability  was 
thereby  cast  upon  the  city  for  any  consequential  damages,  which  ma}' 
be  claimed  to  have  been  occasioned  through  their  having  impeded  the 
flow  of  the  stream.     Radcliff's  Exrs.  v.  Mayor,  etc.,  of  Brooklyn,  4  N.  Y. 
195  ;  Atwater  v.  Trustees  of  Village  of  Canandaiffua,  124  ib.  602. 

I  consider  that  we  must  find  support  for  this  judgment,  solely,  in 
some  duty  cast  by  the  statute  upon  the  municipality  and  negligently 
performed,  or  omitted.  I  find  no  evidence  of  a  corporate  dominion  or 
control  assumed,  other  than  in  the  use  made  of  the  creek,  as  an  outlet 
for  its  system  of  sewers ;  and  it  is  necessary  briefly  to  notice,  in  the 
light  of  the  legal  principles  to  which  I  have  above  called  attention,  the 
powers  conferred  upon  the  corporate  authorities  in  the  charter  legisla- 
tion, or  in  the  special  acts,  to  which  our  attention  has  been  directed. 
The  city  of  Syracuse  was  incorporated  in  1847.  Onondaga  creek,  ris- 
ing in  the  highlands  to  the  south  of  the  city,  flows  through  it  to  the 
north  ;  draining  the  extensive  watershed  of  the  country  beyond  the  city 


O'DONNELL   v.   SYRACUSE.  615 

and  furnishing  a  natural  drainage  for  municipal  needs.     The  original 
charter  provisions  gave  authority  to  the  common  council  to  make  high- 
ways, bridges,  sewers,  etc.,  and  imposed  duties  with  respect  to  tbeir 
proper  maintenance  and  repair.     In  1854,  (Chap.  28  of  the  laws),  the 
legislature,  revising  the  charter,  gave  power  to  the  common  council  to 
pass  ordinances  and  to  make  regulations,  providing,  among  other  things, 
for  the  construction  and  the  repair  of  sewers;   for  the  regulation, 
straightening  and  improvement  of  the  channel  of  Onondaga  creek  and!  *^^?^  ^ 
for  the  draining  of  the  lands  adjacent  thereto ;  for  the  prevention  of  I    <jXa^  V 
encroachments  upon  the  channel  and  for  the  deepening  of  the  same.  I    jsB  ^^je. 
In  subsequent  charters,  as  amended,  revised,  or  affected  by  legislation,  I  ^.^^^_^ 
ample  powers  were  conferred  upon  the  municipal  government,  with  re-  I     tatyV^ 
spect  to  the  making,  maintenance,  or  improvement,  of  sewers,  and  to  J 
the  regulating,  deepening  and  improving  of  Onondaga  creek.     In  1854 
and  1855,  (Chaps.  86  and  508  of  the  laws),  special  commissions  were 
appointed  by  the  legislature  for  the  purpose  of  straightening  the  creek 
and  of  making  a  new  and  artificial  channel ;   and  to  some  extent  this 
work  was  done.     By  subsequent  acts,  commissions  were  appointed  and 
powers  were  conferred  upon  the  municipal  authorities  to  establish  a 
system  of  sewerage.     In  1898,  (§  151  of  chap.  595  of  the  laws),  the 
legislature  provided  that  "all  sewers  .   .  .  shall  conform  in  all  things 
to  the  system  of  sewerage  set  forth  in  the  report  and  shown  by  the  * 
maps  made  by  Samuel  M.  Gray,"  etc.,  with  power  to  "the  common 
council  in  their  discretion  to  make  any  necessary  change  in  said  sys- 
tem," etc.     It  also  appears  that  the  attention  of  the  common  council 
had  been  called,  by  one  of  their  committees,  to  the  necessity  of  some 
action  to  avert  danger  from  the  recurrence  of  possible  floods,  by  im- 
proving the  channel. 

We  may  assume,  therefore,  that  there  were  lacking  neither  authority, 
nor  power,  in  the  municipal  government  to  take  any  measures,  relating 
to  the  improvement  of  Onondaga  creek,  nor  advisory  statements  as  to 
the  necessity  for  such  measures.  But,  clearly,  all  such  measures  were 
discretionary  with,  and  lay  in  the  judicial  action  of,  the  authorities.  .    .^ 

As  to  the  sewers,  the  situation  was  different.     Their  construction,  so  "^"^'"^ 
far  as  it  had  been  assumed,  devolved  a  duty  upon  the  municipality  for  f\  ^^^T^ 
their  maintenance,  in  a  proper  manner  and  free  from  obstructions,  ^^"^'^S^ 
which  was  of  a  purely  ministerial  nature  ;  for  it  was  a  corporate  obli-    V^'*    -^ 
gation  having  relation  to  its  special  interests.     Rochester  W.  L.  Co.        '^*-''^*^ 
v.  City  of  Rochester,  3  N.  Y.  463.     The  Gray  system,  provided  for  by 
the  act  of  1898,  intended  an  operation  of  the  sewers,  which  would  pre- 
vent pollution  of  the  waters  of  the  creek,  and  it  made  no  j)rovi8ion  for 
floods ;  however  it  may  be  argued  that  the  effect  would,  probably,  have 
been  to  protect  against  them.     No  absolute  duty  appears  to  have  been 
enjoined  by  statute  upon  the  municipality  with  respect  to  the  creek ; 
nor  was  any  created  by  an  assumption  of  the  undertaking  to  control 
and  to  restrain,  under  all  circumstances,  its  waters.     The  creek  had 
been,  from  early  times,  the  natural  drainage  outlet  for  the  territory 


/ 


iS'fC* 


616  o'donnell  v.  sykacuse. 

and  it  became  such  for  the  city  upon  its  banks.     The  right  of  the  city 

to  maJie  use  of  it  for  that  purpose  is  beyond  question ;   whether  from 

jfN^       long  use  by  the  communit}',  or  from  legislative  recognition.     The  situ- 

V^         I  ation,  and  instances  in  its  history,  sufficiently  advised  the  inhabitants 

I  of  the  menace  from  an  overflow  of  the  stream,  through  the  inability  to 

)     Jjjbj  I  carry  off  in  its  channel  any  extraordinary  quantity  of  waters  precipi- 

I'tated  by  melting  snows,  or  excessive  rains.     But,  aside  from  the  plainly 

discretionary  nature  of  the  powers  vested  in  the  municipal  government 

with  respect  to  the  subject,  the  exercise  of  those  powers  was  fraught 

■with  many  obvious  difficulties.     It  was  confronted  with  a  serious  prob- 

(lem  in  a  situation,  not  created  by  its  own  acts,  but  by  nature^  If  the 
difficulty  could  be  met  and  danger  could  be  averted,  the  duty  of  corpo- 
rate action  was  one  calling  for  the  exercise  of  deliberate  judgment  and 
discretion. 

The  question  of  municipal  respousibility  for  insufficient,  or  for  de- 
fective, sewerage,  has  been,  not  infrequently,  the  subject  of  discussion 
in  the  decisions  of  this  court  and  the  reasoning  in  some  of  the  cases  is 
not  without  its  pertinence.  In  Mills  y.  Cit>^ ^£_Bj'ooklyn,  (32  N.  Y. 
495),  the  complaint  was  for  the  insufficiency  of  the  sewer  to  carry  off 
the  water  from  the  streets  ;  in  consequence  of  which  the  plaiutiffs' 
premises  were  flooded  and  their  building  was  injured.  In  deciding  ad- 
^,j^  rV-Z^versely  to  the  claim  of  the  plaintiffs  for  damages,  it  was  held  that 
.  -  -  "  the  duty  of  draining  the  streets  and  avenues  of  a  city,  or  village,  is 

one  requiring  the  exercise  of  deliberation,  judgment  and  fliscretion'_ 
It  cannot,  in  the  nature  of  things,  be  so  executed  that  in  every  single 
moment  every  square  foot  of  the  surface  shall  be  perfectly  protected 
against  the  consequences  of  water  falling  from  the  clouds  upon  it. 
The  duty  is  .  .  .  of  a  judicial  nature;  for  it  requires  the  qualities 
of  deliberation  and  judgment.  It  admits  of  a  choice  of  means  and  of 
^*^*''~*^  the  determination  of  the  order  of  time  in  which  improvements  shall  be 
made."  Again,  it  was  said,  "It  maj',  therefore,  be  laid  down  as  a 
very  clear  proposition,  that  if  no  sewer  had  been  constructed  at  the 
locality  referred  to,  an  action  would  not  lie  against  the  corporation, 
though  the  jury  should  find  that  one  was  necessary."  In  Seifert  v. 
City  of  Brooklyn,  (101  N.  Y.  136),  the  plaintiff  recovered  the  damages, 
which  had  been  occasioned  by  inundations  of  the  district  of  his  resi- 
dence, through  a  defective  construction  of  the  sewers.  In  the  opinion, 
the  cases  were  reviewed  and  the  principle  of  the  immunity  of  municipal 
cgrporations  from  liability  for  damages  occasioned,  either  by  an  insuffi- 
ciency of  the  plan  of  an  improvement,  or  by  the  neglect  to  exerci&e  the 
power  to  make  desired  improvements,  was  asserted.  In  that  case,  the 
liability  of  the  defendant  was  upheld,  upon  the  ground  that  its  acts  had 
resulted  in  the  creation  of  a  nuisance.  It  was  observed  that  "  while 
the  corporation  was  under  no  original  obligation  to  the  plaintiff,  or 
other  citizens,  to  build  a  sewer  at  the  time  and  in  the  manner  it  did, 
yet,  having  exercised  the  power  to  do  so  and  thereby  created  a  nui- 
sance on  his  premises,  it  incurred  a  duty,  having  created  the  necessity 


O'DONNELL   v.   SYRACUSE.  617 

of  its  exercise,  and  having  the  power  to  perform  it,  of  adopting  and 
executing  such  measures  as  should  abate  the  nuisance  and  obviate  the 
damage."  In  Byrnes  v.  City  of  Cohoes,  (67  N.  Y.  204),  the  phiintiff's 
property  had  been  damaged  by  a  flood  of  water,  collected  from  the 
streets,  which,  but  for  the  curbing  and  guttering,  would  have  passed 
away  in  a  natural  watercourse.  It  was  held  that  "  the  cases  .  .  . 
to  the  effect  that  a  municipal  corporaticfi  is  not  liable  for  an  omission 
to  supply  drainage,  or  sewerage,  do  not  apply  to  a  case  where  the 
necessity  for  the  drainage,  or  outlet,  is  caused  by  the  act  of  the  cor- 
poration itself." 

It  seems  to  me  to  be  very  clear,  therefore,  that  the  omission  of  the 
municipal  authorities  of  the  city  of  Syracuse  to  make  provision  for  ob- 
viating  the  danger  of  an  overflow  of  the  creek  was  not  the  neglect  of 
an  absolute  duty,  which  made  the  corporation  liable  tor  the  damages 
of  which  the  plaintiff  r!nmp1a.ir|p;-  Assumnig  that  there  was  a  auty", 
which  could  have  been  effectively  performed,  and  assuming  that  the 
municipality  had  the  control,  neither  reason,  nor  authority,  supports 
the  contention  that  the  failure  to  exercise  the  governmental  power  of 
acting  upon  a  matter,  not  relating  to  some  special  interest,  nor  to  some 
undertaking  assumed,  nor  commanded  by  anj'  legislative  enactment, 
imposed  a  responsibility  upon  the  corporation  for  what  might  happen 
injuriously  to  the  citizens  through  the  occurrence  of  an  extraordinary 
flood.  In  Cain  v.  Syracuse,  (sujjva),  it  was  said,  with  respect  to  the 
failure  of  the  common  council  to  exercise  the  power  to  direct  the  tear- 
ing down  of  a  wall,  which  had  been  made  dangerous  by  a  fire  and  from 
the  fall  of  which  the  plaintiff's  intestate  had  been  killed,  that,  assuming 
the  power  existed,  "  did  a  duty  result  so  absolute,  certain  and  impei- 
ative,  as  to  found  a  right  of  action  upon  the  omission?  AYe  must  con- 
sider the  nature  and  scope  of  the  duty  and,  in  so  doing,  must  not  be 
misled  by  the  test,  which  makes  permissive  words  absolute  and  a  com- 
mand. That  test  .  .  .  will  not  serve  to  make  a  duty,  which  is  inevi- 
tably and  inherently  discretionary,  nevertheless  ministerial,  because 
the  public  have  an  interest  in  its  exercise,  or  the  rights  of  individuals 
may  be  affected  by  it."  In  this  case,  the  power  mav  be  conceded  tq 
have  existed  in  the  common  council  to  have  ordered  works,  or  to  have 
put  into  execution  plans,  for  aveildng  the  possible  recurrence  of  fresh- 
ets and  floods  ;  but  it  did  not  act,  whether  from  inability  to  devise  any 
satisfactory  plan,  or  for  any  other  rpaa^^n^  ia  iTnmQi-prinl  •  aprl  its  non- 
auction,  like  that  of  the  state  legislative  bodv.  could  create  no  cause  of 
action.  The  plaintiff  and  the  other  citizens  affected  by  the  flood  were 
no  worse  off  than  they  would  have  been  if  the  creek  had  not  been  used 
at  all  for  sewerage  purposes,  except  for  the  incidental  deposit  of  sew- 
age matter.  The  drainage  of  sewers  into  the  channel,  however,  did 
not  cause  the  flood,  although  naturally  contributing  to  the  volume  of 
the  stream.  The  flood  was  an  extraordinary  and  an  unusual  one,  re- 
sulting from  the  natural  causes  of  the  action  of  the  elements  and  of  the 
lay  of  the  land. 


618 


WHEELER   V.    CITY   OF   CINCINNATI. 


0 


I  have  given  my  reasons,  at  some  length,  in  view  of  the  importance 
of  the  case,  not  only  in  its  possible  bearing  upon  other  damage  cases, 
but  in  the  application  of  the  principle  of  municipal  liability  in  snch 
cases,  and  I  advise  that  the  judgment  appealed  from  should  be  reversed 
and  that  a  new  trial  should  be  ordered ;   the  costs  to  abide  the  event. 

CuLLEN,  Ch.  J.,  0'Brip:n,  Haight  and  Vann,  J  J.,  concur;  Edward 
T.  Bartlett  and  Werner,  JJ.,  dissent. 

Judgment  reversed,  etc.  -^«,«'v-'^' 

WHEELER  y.  CITY  OF  CINCINNATI.  J^  .V'^'^^'^^'^X  J», 

1869.     19  Ohio  Slate,  19.i  ^^'^X^^^^O^^'^^Jt^J^Ti 

The  plaintiff  brought  his  action  in  the  court  of  common  pleas  of  ^^ 
Hamilton  county,  seeking  to  recover  from  the  defendant  the  damages    -f^ 
arising  from  the  casual  destruction  of  his  house  (situated  within  the  ^^ 

\ 


(situated 
limits  of  said  city)  by  fire  ;  on  the  ground  tljat  the  defendant  had 
failed  and  nej^lected  to  provide  the  necessary  cisterns  and  suitable 
engines  for  extinguishin^fires,  in  tliat  quarter  of  city  in  wiiich  his  said 
house  was  situated,  ancPahat  certain  officers  and  agents  of  the  fire 
department  of  _said  city  had  neglected  and  failed  to  perform  their 
duties  in  regard  to  the  extinguishing  of  said  fire,  by  reason  whereof 
said  fire  was  not  extinguished,  as  it  otherwise  might,  and  could  have 
been.  A  demurrer  to  his  petition,  alleging  these  facts,  was  sustained 
by  the  court,  and  judgment  rendered  for  tlie  defendant,  whieh  was 
subsequentj}'  affirmed  by  the  district  court,  upon  proceedings  iu 
error. 

The  plaintiff  now  seeks  a  review  and  reversal  of  those  judgments,  on 
the  ground  of  error  in  sustaining  tlie  demurrer  to  his  petition. 

e/i  T.  Cra2)sey  and  Collins  &  Herron^  for  the  motion. 

J.  Bryant  Walker  ( Walker  S  Conner),  coritra. 

By  the  Court.  The  laws  of  this  State  have  conferred  upon  its 
municipal  corporations  power  to  establish  and  organize  fire  companies, 
procure  engines  and  other  instruments  necessarv  to  extinguish  fire,  and 
preserve  the  buildings  and  property  within  their  limits  from  conflagra- 
tion ;  and  to  prescribe  such  h3'-laws  and  regulations  for  tlie  government 
of  said  companies  as  may  be  deemed  expedient.  But  the  powers  thus 
conferred  are  in  their  nature  legislative  and  governmental ;  the  extent 
and  manner  of  their  exercise,  within  the  sphere  prescribed  by  statute, 
are  necessaril}'  to  be  determined  by  the  judgment  and  discretion  of  the 
proper  municipal  authorities,  and  for  anj'  defect  in  the  execution  of 
such  powers,  the  corporation  cannot  be  held  liable  to  individuals. 
Nor  is  it  liable  for  a  neglect  of  duty  on  the  part  of  fire  companies,  oi 


1  Arguments  omitted.  —  Ed. 


'^^ 


^^^^'^^^^:X^^:^:i^^t:^I^^^^. 


HAYES   V.   CITY   OF   OSIIKOSH.  619 

their  officers,  charged  with  the  dut}'  of  extinguishing  fires.  The  powei 
of  the  city  over  the  subject  is  that  of  a  delegatea  quasf  sovereignt}', 
jwhich  exchides  responsibility  to  individuals  for  tne  neglect  01'  iiarr- 
feasance  of  an  officer  or  agent  charged  with  the  performance  of  du- 
ties. Tiie  case  differs  from  tliat  where  the  corporation  is  charged  tA^ 
law  with  tlie  performance  of  a  dut}'  purely  ministerial  in  its  character. 
We  know  of  no  case  in  which  an  action  like  the  present  has  been  lieW 
to  be  maintainable.  Brinkmerjer  v.  Evansville,  29  Ind.  R.  187  ;  West- 
em  College  of  Medicine  v.  City  of  Cleveland^  12  Ohio  St.  R.  375. 
Leave  to  file  petition  in  error  refused. 


e^>^'«-*'**^  _  HAYES  V.  CITY  OF  OSHKOSH. 

1873.     33  Wisconsin,  314.1 

Action  against  the  city  to  recover  the  value  of  propert}'  destro3'ed 

by  a  tire  which  was  caused  by  ne<jli<yence  in  working  a  steam  fire  en- 

-'  gine  belonging  to  the  cit,y.     Said  engine  was  being  operated  at  the 

time  to  extinguish  a  fire  in  the  barn  of  one  of  plaintiff's  neighbors  ; 

5^>>«..  and  was  under  the  control  of  engineers  employed  and  paid  by  the  cit}-. 
The  city  charter  provided,  in  substance,  that  the  common  council  should 
procure  fire  engines,  and  have  charge  and  control  of  the  same  ;  also 
that  the  council  should  appoint  competent  officers  and  firemen,  define 

_^^  their  duties,  fix  their  salaries,  and  remove  them_at  pleasure. 

"^IT-^    Verdict  directed  for  defendant.     Plaintiff  appealed. 

'"'"jL^.^^C.  Coolbaugh  &  /Son,  for  appellant. 

^'^^^        TT.  H.  Kennedy^  (^Gabe  BoucJc  with  him,)  for  the  cit}'. 

\  Dixon,  C.  J.     The  question  presented  in  this  case  is  settled  bv  an* 

■»^'^  thorit}'  as  full}-  and  conclusively  as  anj*  of  a  judicial  nature  can  ever  be 
said  to  have  been.  The  precise  question  ma}'  not  have  been  hereto- 
fore decided  by  this  court,  but  a  very  similar  one  has,  and  the  govern- 
ing principle  recognized  and  affirmed.  Kelley  v.  3Iilwaukee,  18  Wis. 
83.  Neither  the  charter  of  the  city  of  Oshkosh,  nor  the  general  stat- 
utes of  this  state,  contain  any  peculiar  provision  imposing  liability  in 
cases  of  this  kind  ;  and  the  decisions  elsewhere  are  numerous  and  uni- 
form, that  no  such  liability  exists  on  the  part  of  the  city.  The  case 
made  by  the  plaintiff  is  in  no  material  respect  distinguishable  from 
those  adjudicated  in  Hajford  v.  New  Bedford,  16  Gray,  297,  and 
Fisher  V.  Boston,  104  Mass.  87,  as  well  as  in  several  other  reported 
decisions  cited  in  the  briefs  of  counsel,  and  in  all  of  which  it  was  held 
that  the  actions  could  not  be  maintained. 

The  grounds  of  exemption  from  liability,  as  stated  in  the  authorities 
last  named,  are,  that  the  corporation  is  engaged  in  the  performance  of 

g,  pnhlin  <;pr\'ir-P,  in  wliir-h  it  li^g  nr>  pni-tif»n1nv   I'nt.pvogt     nnf7    from  wllicl] 
1  Statemeut  abridged.     Arguments  omitted.  —  Ed. 


'.^ 


620 


WILD   V.    PATEKSON. 


It  derives  no  special  benefit  or  advantage  in  its  corporate  capacity,  but 
which  it  is  l)ound  to  see  performed  in  [tursuanee  of  a  duty  imposed  b}' 
law  for  the  general  welfare  of  tlie  inhabitants,  or  of  the  eommunit}'  { 
^yjjc        that  the   members  of  tlie   fire  di'[)artment,  although  appointed  hy  the 
ji^jj^  city  corporation,  are  not,  when  acting  in  the  discharge  of  their  duties, 

servants  or  agents  in  the  employment  of  tlie  city,  for  whose  conduct 
the  city  can  be  held  liable  ;  but  they  act  rather  as  public  officers,  or 
officers  of  the  citj-  charged  with  a  public  service,  for  whose  negligence 
or  misconduct  in  the  discharge  of  official  dut}'  no  action  will  lie  against 
the  city,  unless  expressl}'  given ;  and  hence  the  maxim  respondeat 
s uperior  has  no  application. 

"  The  reasons  thus  given  are  satisfactory'  to  our  minds,  and  lead  to 
a  conclusion  which  on  the  whole  seems  to  us  to  be  just  and  proper. 
A  Individual  hardship  or  loss  must  sometimes  be  endured  in  order  that 
1  still  greater  hardship  or  loss  to  tlie  public  at  large  or  the  community 
Imay  be  averted.     It  would  seem  to  be  a  hard  rule  which  would  hold__ 
the  cit\'  responsible  in  damages  in  such  cases,  when  the  work  in  which 
it,  or  rather  its  public  officers  are  engaged,  is  one  of  mere  good  will,  a 
charity,  so  to  speak,  designed  for  the  relief  of  suffering  members  of  the 
communit}',  or  it  may  be  of  the  entire  people  of  the  district.     If  the 
legislature  sees  fit  to  enact  such  liability,  so  let  it  be  ;  but,  in  the  ab- 
sence of  such  enactment,  we  must  hold  the  liability  does  not  exist. 


By  the  Court.  —  Judgment  affirmed. 


T 


>v^ 


WILD  V.   PATERSON. 

1885.     47  New  Jersey  Law,  406.^ 
On  demurrer  to  declaration. 


""^^i^t:^^ — MA 

The  action  is  in  case.     The  declaration  avers  that  the  city  of  Pater-  0.  C^ 
son,  under  the  authority  and  direction  of  its  charter,  maintained  a  fire 
department,  of  which  plaintiff  was  a  member,  attached  to  a  certain 
company-,  wliich  used  a  steam  fire  engine  ;  that  it  was  the  duty  of  the        ^ 
city  to  provide  for  that  engine  a  brake  and  to  keep  it  in  good  order  and 
repair  ;  that  by  reason  of  failure  on  the  part  of  the  cit}'  to  perform  this     Ip^vm 
duty,  plaintiff,  while  assisting  to  haul  the  engine  to  a  fire  was  run  over 
and  seriously  injured.     For  the  injury  thus  received  plaintiff  seeks  to 
recover  damages. 

A  demurrer  to  this  declaration  was  interposed. 

Henry  S  Dickmson,  and  Herbert  Stout,  for  plaintiff. 

F.  Scott,  and  John  W.  Grir/gs,  for  defendants. 

Magie,  J.     It  has  been  settled  beyond  the  possibility  of  further  con- 
tention in  this  state,  that  municipal  corporations  are  not  liable  to  action 

1  Arguments  omitted.  —  Ed. 


WILD   V.    TATERSON.  621 

for  neglect  to  perform  or  negligence  in  performing  duties  imposed  on 
tliem  by  law  and  due  to  the  public,  in  behalf  of  any  individual  suffering 
damage  by  reason  of  such  negligence,  unless  an  action  is  given  b}' 
statute.  AVhere  the  en)ployees  or  officers  of  a  municipal  corporation 
are  negligent  in  tlie  i)erformance  of  such  duties,  the  doctrine  of  re- 
spondeat sujyerior  will  not  apply.  Livermore  v.  Board,  cfec,  2  Vroom 
508  ;  Pray  v.  Jersey  City,  3  Vrooni  394 ;  Cooley  v.  Freeholders,  dtc, 
3  Dutcher  415;  Freeholders,  c^c,  v.  Strader,  3  Ilarr.  108;  Coiidict 
V.  Jersey  City,  17  Vroom  157. 

The  duty  of  the  city  of  Paterson  to  maintain__a  jfire  department  i_3 
maiiifestly  a  duty  owedto  the  public  andimposed  b\'  law.     Any  one 
TnjuTecTTiiriiegTigence  in  the  performance  of  that  duty,  will  be  debarred 
from  action  for  such  injuiy  1)3-  the  well-settled  rule  above  stated. 

Plaintiff's  contention  is  that  his  case  is  exceptional,  and  not  within 
the  rule,  upon  the  ground  that  the  duty  of  keeping  the  machiner}-  used 
for  extinguishing  fires  in  good  order,  is,  as  respects  those  who  are 
employed  in  its  use,  a  private  duty,  owed,  not  to  the  public,  but  to  the 
empIo3-ee. 

But  the  distinction  thus  sought  to  be  made  is,  in  mv  judgment, 
merel}'  specious. 

It  does  not  appear  what  was  the  precise  relation  between  plaintiff,  as 
a  member  of  the  fire  department,  and  the  cit}'.  Whetlier  his  services 
were  voluntarily  rendered  or  were  paid  for,  is  not  disclosed.  But  in 
either  case  the  relation  is  not  the  ordinary  relation  of  master  and  ser- 
vant. Employees  of  such  corporations  in  the  execution  of  its  pul)lic 
duties  have  been  held  tdbe"  rfTereThstruments  in  the  performance  of 
such  duties,  and  to  act  as  i>ul)lic  officers  charged  with  a  public  service- 
Condict  v.  Jersey  City,  supra. 

The  duty  to  provide  and  maintain  apparatus  for  extinguishing  fireaj  f^!  w  AtA^ 
is  plainl}'  included  within  the  public  duty  of  establishing  a  fire  depart- B    ■>y>-*-*^**-^ 
ment  for  that  purpose.     The  city,  as  a  corporation,  derives  from  it  no  I    \lj^  \j>>r> 
special  benefit  or  advantage.     The  duty  is  single  and  undivided,  and!     lpiok.<l^ 
although  the  cit}'  must  perform  this  duty  bj"  means  of  agents  or  officers, 
it  owes  to  them  no  special  duty,  differing  either  in  kind  or  degree  from 
the  duty  which  it  owes  to  others  in  this  respect.     Tiie  dut}'  is  of  a  pub- 
lic character,  and  on  grounds  of  public  policy  its  neglect  will  not  give 
a  right  of  action  to  any  individual  in  the  absence  of  a  statute.    If  there 
are  any  reasons  for  a  modification  of  this  rule  with  respect  to  employees 
of  such  corporations  engaged  in  hazardous  service,  they  cannot  be  con- 
sidered bv  the  courts.     The  rule  can  onlv  be  modified  by  the  legisla- 
ture.    In  the  absence  of  legislation  the  plaintiff  is  within  the  rule  and 
plainly  without  a  right  of  action.  ' 

For  this  reason  the  city  is  entitled  to  judgment  on  the  demurrer.^   A<V^  T^^ 

1  See  Pettin(]ell  v.  Chelsea,  161  Mass.  368,  37  N.  E.  880,  24  L.  R.  A.  426 ;  Kies  ▼. 
Erie,  135  Pa.  144,  19  Atl.  942,  20  Am.  St.  Rep.  867. 


622      SPRINGFIELD   FIRE   INS.    CO.   V.    VILLAGE    OF   KEESEVILLE. 

C<r**-A^  Vr.-C»^^>^      V->J^VV   »U'^JU^-''■*'-3i}^_^  -4o^    Oj^,,^^ 

SPRINGFIELD  FIRE  &c.  INSURANCE   CO.  v.  VILLAGE   OF     '^^ 

KEESEVILLE.  ^^vj-xJti/.^- w>,Jk.,  '*''t?*^ 

1895.     148  New  York,  46.1  '^''''■«>->.=S>>-*,.„^^ 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court  tj-sjtl^ 
in  the  Third  Judicial  Department  [reported  in  80  Hun,  162].  va^o 

The   complaint   sets    forth   that  the    plaintiff   is  a  Massachusetts    S«^sji 
corporation  and  that  the  defendant  is  a  village  organized  under  the    _V 
provisions  of  chapter  291   of  the  Laws  of  the  state  of  New  York,  <f7'^ 
passed  in  1870,  and  the  amendments   thereto;  that  the  plaintiff  car- ^^/^^ 
ried  on  the  business  of  fire  insurance  within  the  limits  of  the  defend-       — ■ 
ant,  and  for  the  privilege  of  so  doing,  and  of  having  the  protection  ^2l*f 
of  the  water  works  and  fire  department  and  appliances  of  defendant,     ^^^h^ 
had  paid  an  annual  tax  to  the  defendant;  that  the  defendant  had  a     V^^s- 
system  of  water  works  and  fire  appliances,  which  were  maintained    Ckv»« 
by  taxes  levied  upon  all  its  taxable  inhabitants,  including  plaintiff  3::„j^ 
and  other  insurance  companies,  and  by  water  rents   paid  by  such        ' — 
inhabitants.     The  complaint  then  proceeds  to  set  forth  the  insurance 
by  the  plaintiff  of  property  of  one  Emily  E.  Brewer,  for  a  percentage 
less  than  for  like  property  outside  the  limits  of  the  water  and  fire 
protection,  and  the  destruction  by  fire  thereof;  in  consequence  where- 
of the  plaintiff  had   paid   to  her,   under  its  contract  of  insurance, 
$4,450.     The  complaint  then  sets  forth  the  assignment  to  plaintiff 
by  Emily  E.   Brewer   of   all    claims    and  damages    against   the   de- 
fendant,   by    reason    of    said    fire    and    damages,   and   alleges    that 
"  at   the   time   of  the  aforesaid  fire,  the  defendant   had  wrongfully 
and  negligently  allowed  and  caused   its   said  water  works,  pumps, 
pipes  and  fire  appliances  to  become  and  be  out  of  repair,  broken  and 
weakened,  stopped  with  mud  and  other  foreign  objects,  and  unfit  for 
use,  to  such  extent  that  water  could  not  be  throw'n  or  put  upon  said 
dwelling  house  to  extinguish  the  fire  therein;  that  when  the  hose  was 
laid  and  opened,  and  ready  to  throw  water  upon  the  fire  in  said  house, 
said  fire  was  very  slight  and  had  done  very  little  damage;  that  if 
said  fire  appliances  and  water  works   had   been  in  proper  working 
order   said   fire  would   and   could    have   been    extinguished   without 
damaging  said  house  to  exceed   three   hundred  dollars;  that  at  the 
time  of  said  fire,  and  for  several  years  previous  thereto,  the  defend' 
ant,  under  and  in  pursuance  of  the  powers  granted  it  by  the  laws  of 
the  state  of  New  York  "^  had  assumed  to  maintain  water  works  and 

1  Statement  abridged.    Arguments  omitted.  —  Ed. 

^  "  The  complaint  must  be  read  in  connection  with  the  statutes  governing  the  de- 
fendant ;  they  are  as  much  a  part  of  the  complaint  as  if  written  in  it. 

"The  defendant  was  authorized  by  Chapter  181  of  the  Laws  of  1875,  and  various 
acts  amendatory  thereof,  to  construct  and  maintain  water  works  to  supply  its  inhabi- 
tants with  water. 


.X^i^^^,*r:-'ts;3a£.V^ 


SPRINGFIELD   FIRE    INS.    00.   V.   VILLAGE    OF    KEESEVILLE.        623 


fire  appliances  and  a  fire  department  for  the  purpose,  among  other 
things,  of  protecting  the  property  of  the  inhabitants  of  defendant 
against  loss  by  fire,  of  all  which  plaintiff  and  its  assignor  had  notice, 
and  in  reliance  thereon  said  assignor  paid  taxes  to  defendant  to 
maintain  the  same,  and  plaintiff  paid  taxes  to  defendant  for  said 
purpose,  and  insured  property  at  reduced  rates  as  aforesaid;  .  .  . 
that  plaintiff's  aforesaid  loss  of  $4,450,  to  the  extent  of  at  least 
^4,150,  was  caused  solely  by  the  negligence  and  wrongful  and 
unlawful  acts  of  defendant,  in  failing  to  keep  its  water  works  and 
fire  appliances  in  proper  working  order,  and  in  failing  to  employ 
competent  men  to  manage  and  care  for  the  same."  The  complaint 
then  demanded  judgment  for  the  said  sum  of  $4,150. 

The  defendant  demurred  to  the  complaint,  on  the  ground  that  it 
did  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

At  the  General  Term  the  demurrer  was  overruled. 

Chester  B.  McLaughlin^  for  defendant. 

A.   W.  Boynton^  for  plaintiff. 

Gray,  J.  The  learned  justice  who  spoke  for  the  General  Term,"  in 
a  very  elaborate  and  interesting  opinion,  proceeded,  very  correctly, 
as  I  think,  upon  the  assumption  that  the  negligence  charged  against 
the  defendant  in  the  complaint  related  entirely  to  its  water  works 
system.  In  the  view  which  we  take  of  the  matter,  it  is  of  compara- 
tively little  consequence  whether  the  plaintiff  bases  its  right  of  action 
upon  negligence  with  respect  to  the  fire  department  as  such,  or  to 
the  water  department  as  such.  But  the  fair  reading  of  the  com- 
plaint undoubtedly  warrants  the  assumption  of  the  learned  justice  at 
General  Term. 

If  I  correctly  apprehend  the  reasoning,  which  led  the  General 
Term  to  the  conclusion  that  there  was  a  municipal  liability  upon  an 
admission  of  the  facts  set  forth  in  the  complaint,  it  rests,  in  the 
main,  upon  two  theories.  In  thfi^rst  place  it  is  held  that  by  the 
voluntary  assumption  on  the  part  of  the  defendant  of  the  power  con- vD  ^^■''^^>*J^ 
ferred  by  statute  to  construct  and  maintain  water  works,  it  became 
responsible  for  the  proper  exercise  of  such  power  and  that  such 
responsibility  is  necessarily  demanded  in  the  interest  of  an  efficient 
public  service,  and  the  inhabitants,  who  have  contributed  to  the 
maintenance  of  such  a  public  work,  have  a  right  to  hold  the  defend- 
ant to  the  exercise  of  reasonable  care  and  diligence  and  to  a  liability 
for  a  failure  to  do  so.^In  the^nextplace,  it  is  held,  while  not  deem- 
ing that  the  defendant  had  engaged  in  a  private  corporate  business, 

"The  president  and  trustees  constitute  the  board  of  water  commissioners.  (Chap. 
74,  Laws  of  1891.) 

"  The  defendant  receives  rents  for  supplying  water ;  it  has  control  over  all  the  em- 
ployees connected  with  the  water  works ;  it  can  employ  and  discharge  them  at  plea- 
sure ;  they  are  its  servants.  The  construction  and  maintenance  of  the  water  works  is 
something  that  was  not  forced  upon  it  by  the  power  of  the  state  ;  it  could  act  under 
the  law  authorizing  it  to  construct  and  maintain  water  works,  or  refuse  to  act,  at  ita 
pleasure.  .  .  ."     Herkick,  J.,  in  80  Huu,  pp.  16",  168.  —  Ed. 


V>iJUJ>-^>J«=' 


624      SPRINGFIELD   FIRE   INS.   CO.    V.   VILLAGE   OF   KEESEVILLE. 

conducted  for  its  own  benefit  and  not  for  the  general  public,  never- 
theless, that  the  defendant  having  agreed  to  erect  and  talve  charge  of 
0'*'*"^*-*f      the  public  work  and  enterprise  for  the  public  within  its  boundaries,  if 
'^'^r^/^^'^  there  is  a  failure  to  exercise  reasonable  care  and  diligence  in  main- 
;r:<jf  '<        taining  it,  there  has  been  a  breach  of  an  implied  contract^  for  which, 
if  injury  results,  an  action  will  lie.     Holding  these  views,  the  learned 
General  Term  felt  compelled,  because  of  the  admission  by  the  defend- 
ant, through  its  demurrer,  of  the  allegations  of  wrongful  and  neglect- 
ful conduct  in  relation  to  the  maintenance  of  its  water  works,  to  hold 
that  the  plaintiff  made  out  a  good  cause  of  action. 

The  proposition  that  such  a  liability  I'ests  upon  a  municipal  cor- 
poration, as  is  asserted  here,  is  somewhat  startling  and  I  think  the 
learned  General  Term  justices  have  misapprehended  the  nature  of  the 
responsibility,  which  devolved  upon  the  defendant  in  connection  with 
its  mainienance  of  a  water  works  system,  as  well  as  the  character  of 
the  power  which  it  was  authorized  to  exercise  in  relation  thereto.  J 
might  remark,  in  the  same  spirit  of  criticism  which  was  assumed  by 
the  learned  justice  at  General  Term,  that  while  the  efficiency  of  the 
public  service  would  be  promoted  by  holding  municipal  corporations 
S*""^  lo  the  exercise  of  reasonable  care  and  diligence  in  the  performance 
"■***^  of   municipal  duties  and  to  a  liability  for  injury   resulting  from   a 

*^**  failure  in  such  exercise,  the  application  of  that  doctrine  to  such  a 

case  as  this  might,  and  probably  would,  be  highly  disastrous  to 
municipal  governments.  A  little  reflection  will  show  that  a  multi- 
tude of  actions  would  be  encouraged,  by  fire  insurance  companies,  as 
by  individuals,  and  that  cases  have  arisen,  and  may  still  arise,  where 
an  extensive  conflagration  might  banki'upt  the  municipality^  if  it 
couici  be  rendered  liable  for  the  damages  or  losses  sustained. 

The  distinction  between  the  public  and  private  powers  conferred 
upon  municipal  corporations,  although  the  line  of  demarcation  at 
times  may  be  difficult  to  ascertain,  is  generally  clear  enough.  It  has 
been  frequently  the  subject  of  judicial  discussion  and,  among  the 
numerous  cases,  it  is  sufficient  to  refer  to  Bailey  v.  The  Mayor 
(3  Hill,  531);  Lloyd  v.  The  Majjor  (5  N.  Y.  369)  and  Ilaxmilian  v. 
The  Mayor  (62  id.  160).  The  opinion  in  Darlington  v.  The  Mayor 
(31  N.  Y.  164)  is  also  instructive  upon  the  subject.  When  we  find 
that  the  power  conferred  has  relation  to  public  purposes  and  is  for 
the  public  good,  it  is  to  be  classified  as  governmental  in  its  nature 
and  it  appertains  to  the  corporation  in  its  political  character.  But 
when  it  relates  to  the  accomplishment  of  private  corporate  purposes, 
in  which  the  public  is  only  indirectly  concerned,  it  is  private  in  its 
nature  and  the  municipal  corporation,  in  respect  to  its  exercise,  is 
regarded  as  a  legal  individual.  In  the  former  case,  the  corporation 
is  exempt  from  all  liability,  whether  for  non-user  or  misuser;  while 
in  the  latter  case,  it  may  be  held  to  that  degree  of  responsibility 
which  would  attach  to  an  ordinary  private  corporation.  Then,  the 
Investiture  of  municipal  corporations  by  the  legislature  with  admin* 


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SPRINGFIELD   FIRE    INS.   CO.    V.   VILLAGE   OF   KEESEVILLE.      G25 


%  cJifyx^tM-O 


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istrative  powers  may  be  of  two  kinds.     It  may  confer  powers  and^fl 
enjoin  their  performance  upon  the  corporation  as  a  duly;  or  it  niaylj^ 
create  new  powers   to   be   exercised   as   governmental   adjuncts  and" 
make  their  assumption  optional  w  ith  the  corporation.     Where  a  duty 
specifically  enjoined  upon   the  corporation  as  such  has  been  wholly 
neglected  by  its  agents  and  an  injury  to  an  individual  arises  in  cou- 
sequence  of  the  neglect,  the  corporation  will   be  held  responsible. 
{Mayor  v.  Furze,  3  Hill,   612,   619.)     So,  in  McCarthy  v.   Syracuse  \j.^!^jX^)^ 
(46  N.  Y.  194),  it  was  held  that  where  a  duty  of  a  ministerial  charac-  ^ 

ter  is  imposed  by  law  upon  the  corporation,  a  negligent  omission  to 
perform  that  duty  creates  a  liability  for  damages  sustained.  Such 
responsibility,  however,  would  not  attach  to  the  corporation  where  it 
has  voluntarily  assumed  powers,  authorized  by  the  legislature  under 
some  general  provision  respecting  municipalities  throughout  the  state 
and  permissive  in  their  nature;  and  at  this  point  I  touch  one  of  the 
theories  upon  which  the  General  Term  decision  seems  to  rest.  In 
such  a  case  —  and  I  speak,  of  course,  of  legislative  acts  which  are 
general  in  their  nature  and  scope  —  the  assumption  by  the  municipal 
corporation  is  of  a  further  function  of  self,  or  local,  government  and 
such  a  power  is  discretionary  in  its  exercise,  and  carries  with  it  no 
consequent  liability  for  non-user  or  misuser.  In  the  legislature  reside 
the  power  and  force  of  government,  confided  to  it  by  the  People  under 
constitutional  restrictions.  In  the  creation  of  municipal  corpora- 
tions subordinate  commonwealths  are  made,  upon  which  certain 
limited  and  prescribed  political  powers  are  conferred  and  which  enjoy 
the  benefits  of  local  self  government.  (^People  ex  rel.,  etc.,  v.  Detroit, 
28  Mich.  228.)  When,  in  addition  to  those  general  powers  which 
are  prescribed  upon  the  creation  of  a  municipal  corporation,  general 
statutes  permit  the  assumption  of  further  powers  as  a  means  of  bene- 
fiting the  portion  of  the  public  in  the  particular  locality,  they  invest 
the  corporation  availing  itself  of  the  permission  with  just  so  much 
more  governmental  power.  Just  as  the  general  powers  deposited 
with  the  various  municipalities  are  exercised  by  them  in  a  quasi 
sovereign  capacity,  so  would  any  added  powers  designed  for  the  gen- 
'Sral  public  good,  though  optional  with  the  corporation  as  to  their 
assumptioU,  and  lil  their  exercise  and  pertormance  local,  t3e  exer^ 
cised.  They  are  not  special,  as  being  designed  for  and  granted  to  a 
particular  municipality;  for  they  are  applicable  to  every  part  of  the 
body  politic  where  municipal  government  exists.  Such  powers,  in 
legal  contemplation,  appertain  to  the  municipal  corporation  as  such, 
and  may  be  adopted  as  a  part  of  the  governmental  system. 

The  acts,  under  which  the  defendant  was  authorized  to  construct 
and  maintain  a  system  of  water  works,  constitute  a  general  law, 
applicable  to  all  incorporated  villages  in  the  state.  They  impose  no 
duty  and,  when  availed  of,  the  task  undertaken  is  discretionary  in 
its  character.  The  grant  of  power  must  be  regarded  as  exclusively 
for  public  purposes  and  as  belonging  to  the  municipal  corporation* 

♦r^^  n,x;^icSt:.^l.^    Co    ^  '♦^^  **    *^^^A^ 


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62G      SPRINGFIELD   FIRE   INS.    CO.    V.    VILLAGE    OF   KEESEVILLE. 

when  assumed,  in  its  public,  political  or  municipal  character.  In 
Bailey  v.  The  Mayor  (3  Hill,  531),  to  which  reference  is  made  in 
the  opinion  below,  the  city  of  New  York,  at  a  very  early  day,  was 
authorized  by  special  legislation  to  engage  in  the  work  of  supplying 
its  citizens  with  water  and  to  acquire  lands  and  water  rights  for  the 
purpose  and,  as  it  is  clear  from  the  reading  of  tlie  opinion  of  Chief 
Justice  Nelson,  the  city  was  regarded  in  the  light  of  any  other  pri- 
vate company,  because  of  the  special  franchises  conferred.  Assum- 
ing that  we  could  regard  the  doctrine  of  that  case  as  authoritative  at 
the  present  day,  as  to  which  there  has  been,  and  might  be,  some  ques- 
tion, (see  Darlington  v.  The  Mayor,  etc.,  of  New  York,  sujjra),  the 
decision  is  inapplicable  to  the  present  case.  In  Hunt  v.  The  Mayor 
(109  N.  Y.  134)  the  case  turned  upon  the  performance  by  the  city 
of  the  duty  cast  upon  it  to  keep  its  streets  in  a  safe  condition  for 
travel.  In  Cain  v.  Syracuse  (95  N.  Y.  83),  the  discussion  was  as  to 
the  nature  of  the  duty  imposed  upon  the  defendant  by  the  power  in 
its  charter  to  pass  ordinances,  among  other  things,  for  the  razing  of 
buildings  which  had  become  dangerous  by  reason  of  fire.  The  failure 
of  the  common  council  to  pass  a  resolution  iu  respect  to  the  building 
in  question  was  not  deemed  to  be  a  neglect  of  a  duty.  It  was  a  dis- 
cretionary matter.  Nothing  was  decided  in  that  case,  which  con- 
trols the  decision  of  the  present  case,  or  which  affects  the  discussion 
materially. 

Nor  can  we  assent  to  the  view  that  the  defendant  sustains  such  an 
implied  contractual  relation  to  the  public  within  its  boundaries,  with 
respect  to  the  construction  of  this  public  work,  as  to  be  responsible 
for  a  failure  to  exercise  reasonable  care  and  diligence  in  respect  to 
its  maintenance.  If  the  views  which  I  have,  somewhat  briefly,  ex- 
pressed are  correct,  the  defendant  exercised  a  function  which,  like 
all  governmental  functions,  was  purely  discretionary^  What  it  under- 
took to  do,  when  availing  itself  of  the  privilege  of  the  general  act, 
was  to  provide  for  the  local  convenience  of  its  inhabitants. 

The  industry  of  the  defendant's  counsel  has  collated  a  great  num. 
ber  of  decisions  by  the  courts  of  other  states,  which  indicate  a  very 
general  view  that  the  powers  conferred  by  the  law  of  the  state  upon 
its  mimicipal  corporations  to  establish  water  works  and  fire  depart- 
ments, are,  in  their  nature,  legislative  and  governmental.  From 
them  I  may  select  one  or  two.  In  Edgerly  v.  Concord  (62  N.  H.  8), 
it  was  said  by  the  court:  "As  a  part  of  the  governmental  machinery 
of  the  state,  municipal  corporations  legislate  and  provide  for  the 
customary  local  convenience  of  the  people  and  in  exercising  these 
discretionary  functions  the  corporations  are  not  called  upon  to 
respond  in  damages  to  individuals,  either  for  omissions  to  act  or  in 
the  mode  of  exercising  the  powers  conferred  on  them  for  public  pur- 
poses and  to  be  exercised  at  discretion  for  the  public  good.  For 
injuries  arising  from  the  corporation's  failure  to  exercise  its  public, 
legislative  and  police  powers,  and  for  the  manner  of  executing  those 


SPEINGFIELD   FIRE   INS.   CO.   V.    VILLAGE   OF   KEESEVILLE.       627 

povvers  there  is  no  remedy  against  the  municipality,  nor  can  an 
action  be  maintained  for  damages  resulting  from  the  failure  of  its 
otficers  to  discharge  properly  and  efficiently  their  official  duties." 

In  Tainter  v.  Worcester'  (123  Mass.  311),  it  was  said  by  the  coui't: 
"  The  protection  of  all  buildings  in  a  city  or  town  from  destruction 
or  "injury  by  tire  is  for  the  benefit  of  all  the  inhabitants  and  for  their 
Velief  from  a  common  danger;  and  cities  and  towns  are,  therefore, 
authorizeci  by  general  laws  to  provide  and  maintain  fire  engines.  etcTT 
to  supply  water  for  the  extinguishment  of  fires.  The  city  did  not  by 
accepting'  the  statute  and  building  its  water  works  under  it  enter  into 
any  contract  with,  or  assume  any  liability  to,  the  owners  of  property 
to  furnish  means  or  water  for  the  extinguisliment  ot  nres  upon  which 
an  action  can  be  maintained." 

In  3Iaxmilian  v.  The  3Iai/or  (62  N.  Y.  160),  the  reasoning  of  the 
opinion  permits  a  clear  inference  that  this  defendant  did  not,  by 
accepting  the  provisions  of  the  statutes,  assume  a  duty  of  the  kind 
which  arises  from  the  grant  of  a  special  power.  Judge  Folger  uses 
this  language,  in  his  discussion  of  the  two  kinds  of  duiies  which  are 
Imposed  upon  a  municipal  corporation:  "The  former"  (referring  to 
the  case  of  a  grant  of  a  special  power),  "  is  not  held  by  the  munici- 
pality as  one  of  the  political  divisions  of  the  state."  Again  he  says: 
"Where  the  power  is  intrusted  to  it  as  one  of  the  political  divisions 
of  the  state,  and  is  conferred  not  for  the  immediate  benefit  of  the 
municipality,  but  as  a  means  to  the  exercise  of  the  sovereign  power 
for  the  benefit  of  all  citizens,  the  corporation  is  not  liable  for  non- 
user,  nor  for  misuser  by  the  public  agents;  "  citing  Eastman  v.  Merc 
dith,  (36  N.  H.  284). 

This  defendant,  precisely,  is  entrusted  with  the  power  to  main- 
tain its  water  works,  because  it  is  one  of  the  political  subdivisions 
of_tne  slate  lo  which  the  general  act  nas  reteience  in  its  general  grant 
'of  power  or  privilege.  "^  "^ 

JNor  does  the  fact  that  water  rents  are  paid  by  the  inhabitants  o^\^**y '"*"-^  * 
the  defendant  affect  the  question.     This  fact  is  made  use  of  to  show  I    '^f^T^^fT 
the  private  corporate  character  of  the  water  works  system ;  and  the 
suggestion  is  that  profit  or  benefits  accrue  to  the  defendant  whereby 
tne  corporate  undertaking  is  affected  with  a  private  interest.     But 
that  is  an  incorrect  notion.     The  imposition  of  water  rents  is  but  a  ii  .\^'^:»^  r««>.-^ 
mode  of  taxation  and  a  part  of  the  general  scheme  for  thepurpose  ot  l-fe^:;;^^^  . 
raising  revenue  with  which  to  carry  on  the  work  of  government.     If  I 
profits  accrue  over  the  expense  of  the  maintenance  of  the  system, 
they  go  to  benefit  the  public  by  lessening  th^  general  burden  of 
taxation. 

Thef  fallacy,  as  it  seems  to  me,  which  affects  the  argument  that  the 
municipal  corporation  can  be  made  liable  for  the  non-user  or  misuser 
of  its  power,  consists  in  that  it  fails  to  appreciate  the  true  nature  of 
the  function  which  the  corporation  performs.  It  adds  to  its  political 
machinery  for  the  purpose  of  benefiting  and  of  protecting  its  inhabi* 


628  RUSSELL   V.  TACOMA. 

tants.  There  is  nothing  connected  with  the  work,  which  is  not  of 
a  governmental  and  public  nature.  It  is  in  no  sense  a  j)rivate  busi- 
ness^and  the  authority  to  construct  the  works  was  given  to  it  by  the 
legislature,  not  at  its  own  particular  instance  or  application,  but 
because  it  was  one  of  the  political  subdivisions  of  the  state  and,  as 
such,  was  entitled  to  exercise  it.  How  could  it  justly  be  said  that 
the  maintenance  of  the  watei*  works  system,  any  more  than  of  a  fire 
department,  was  a  matter  of  private  corporate  interest?  Is  it  not 
for  all  the  inhabitants  and  for  their  good  and  protection?  No  interest 
was  designed  to  be  subserved,  other  than  that  of  adding  to  the  powers 
of  a  community  carrying  on  a  local  government.  If  that  is  true,  the 
alternative  is  that  being  for  public  purposes  and  for  the  general  wel- 
fare and  protection,  the  defendant  assumed  a  governmental  function 
and  comes  under  the  sanction  of  the  rule  which  exempts  government 
from  suits  by  citizens. 

Further  elaboration  of  the  subject  is  quite  possible;  but  the  views 
expressed  seem  sufficient  to  justify  the  conclusion  that  the  determin- 
ation reached  by  the  General  Term  was  erroneous. 

The  order  and  judgment  appealed  from  should  be  reversed  and 
the  judgment  entered  at  the  Special  Term  should  be  affirmed,  with 
costs. 

All  concur  (Bartlett,  J.,  upon  grounds  stated  in  the  opinion,  and 
also  upon  the  further  ground  that  this  court  decided  the  principle  here 
involved  in  Hughes  v.  The  Count]/  of  Monroe,  147  N.  Y.  49). 

Ordered  accordingly. 


"V"' 


^ 


^^ 


\^' 


RUSSELL  V.  TACOMA. 
1894.    8  Wash.  156. 


Anders,  J.  The  City  of  Tacoma  is  a  city  of  the  first  class.  Its 
charter  was  framed  and  adopted  in  accordance  vs^ith  the  provisions 
of  the  act  of  the  legislature,  entitled  "  An  act  to  provide  for  the  gov- 
ernment of  cities  having  a  population  of  twenty  thousand  or  more 
inhabitants,  and  declaring  an  emergency,"  approved  March  24,  1890 
(Laws  1889-90,  p.  215).  Cities  organized  under  this  act  are  empow- 
ered to  "lay  out,  establish,  open,  alter,  widen,  extend,  grade,  pave, 
plank,  establish  grades,  or  otherwise  improve  streets,  alleys,  avenues, 
sidewalks,  wharves,  parks  and  other  public  grounds,  and  to  regu. 
late  and  control  the  use  thereof,"  and  these  provisions  of  the  statute 
are  incorporated  into  and  are  a  part  of  the  city  charter. 

By  an  act  of  congress,  approved  December  17,  1888.  there  was 
granted  to  the  city  of  Tacoma  a  license  to  occupy  and  control  for 
the  purposes  of  a  public  park  for  the  use  and  benefit  of  the  citizens  of 
the  United  States,   and   for  no  other   purposes  whatever,   a  certain 


RUSSELL   V.   TACOMA.  629 

described  tract  of  land  known  as  Point  Defiance  Park.  Tliis  license 
is  subject  to  the  condition  expressed  in  the  act,  that  the  United  States 
may  take  possession  of  and  occupy  said  land,  or  any  part  thereof,  for 
military  or  other  purposes  whenever  the  proper  officers  of  the  United 
States  may  see  fit  to  do  so. 

The  charter  of  the  city  of  Tacoma  provides  for  a  board  of  park  com- 
missioners, consisting  of  iive  members,  to  be  appointed  by  the  mayor 
and  connrmed  by  the  city  council ;  and  it  is  made  the  duty  of  the 
board,  subject  to  such  rules  and  regulations  as  the  city  council  may  by 
ordinance  provide,  among  other  things,  to  take  charge  of  and  exercise 
control  over  all  parks  belonging  to  the  citj^,  to  make  report  to  the  city 
council  from  time  to  time  regarding  the  condition  of  the  parks,  and  to 
recommend  appropriations  by  the  council  for  the  improvement  of  the 
parks,  and  when  such  appropriations  have  been  made,  expend  the 
same  in  such  improvements;  but  no  member  of  said  commission  shall 
have  power  to  create  any  debt,  obligation,  claim  or  liability  except 
with  the  express  authority  of  said  commission,  conferred  at  a  meeting 
thereof  duly  convened  and  held  ;  to  make  such  rules  and  regulations  in 
regard  to  the  use  of  the  yjarks  as  shall  best  subserve  the  interests  of  the 
public ;  and  generally,  to  do  all  things  necessary  and  proper  to  secure 
for  the  public  the  free  use  and  enjoyment  of  said  parks. 

Wliile  the  board  of  park  commissioners  were  in  possession  of  Point 
Defiance  Park,  and  were  improving  the  same  for  park  purposes,  appel- 
lant  was^ injured  by  an  explosion  of  giant  powder  and  dynamite  which 
occurred  in  a  building  erected  thereon  by  the  commissioners.  It 
appears  that  at  the  time  of  the^plosion  the~appellant  was  a  laborer 
under  the  control  of  a  foreman  employed  by  some  one  connected 
with  the  board  of  park  commissioners,  and  that  the  powder  and  dyna- 
mite which  exploded  were  stored  in  a  building  used  for  the  purposes  of 
a  blacksmith  shop  and  for  storing  tools.  The  blacksmith  was  engaged 
in  sharpening  tools,  and  the  explosives  were  ignited  by  sparks  from  his 
forge  or  anvil.  This  action  was  brought  to  recover  damages  for  inju- 
ries to  the  person  and  property  of  the  appellant,  alleged  to  have  been 
caused  by  the  carelessness  and  negligence  of  the  city  in  thus  storing 
dangerous  explosives  in  the  place  above  mentioned.  The  court  below 
held  that  the  city  was  not  liable,  and  dismissed  the  action,  and  plain- 
tiff appeals. 

The  only  question  necessary  to  be  determined  is,  whether  the  city  is 
liable  for  malfeasance  or  misfeasance  of  its  officers  while  employed  in 
the  prosecution  of  a  public  work  of  the  character  of  the  one  under  con- 
sideration. It  is  contended  by  the  learned  counsel  for  tUe  appellant 
that  the  board  of  park  commissioners  while  engaged  in  this  work  were 
but  agents  of  the  city,  and  that  the  work  itself  was  but  a  private  enter- 
prise undertaken  by  the  city  for  its  own  benefit,  and  if  this  be  true 
there  is  no  doubt  that  the  city  is  liable  to  the  same  extent  that  a 
private  corporation  or  individual  would  be  liable  under  the  same 
circumstances.        •  ^  -^.    -» IvJU:*    i^-o^si/i--*  ^^'^^^<*'v^\-_  '^JXl 


■A)  *-*^ 


S>*/Nju.>-»rr:> 


\iu«JUr>-^^  •t5"<|, 


630  KUSSELL   V.   TACOMA. 

As  supporting  the  appellant's  contention,  that  the  improvement 
of  Point  Defiance  Park  was  an  improvement  of  mere  local  concern, 
affecting  merely  the  interests  of  the  municipality,  we  are  cited  to  the  case 
of  State,  ex  rel.  Wood,  v.  iSchweickardt,  109  Mo.  496  (19  S.  W.  47).  It 
appears  from  an  examination  of  this  case  that  the  city  of  St.  Louis  was 
the  owner  of  Forest  Park,  and,  under  the  power  given  it  by  law, 
was  attempting  to  lease  a  portion  of  it  for  the  sale  of  intoxicating 
liquors  and  other  refreshments  at  the  park.  Proceedings  were  insti- 
tuted by  the  attorney  general,  in  the  name  of  the  state,  to  prevent  the 
city  from  so  doing,  and  the  court  held  that  — 

"In  relation  to  the  property  in  question,  and  the  discretionary  con- 
trol of  the  city  over  it,  it  must  be  regarded  as  a  matter  of  purely  local 
concern,  as  held  and  owned  by  the  city  not  in  its  political  or  govern- 
mental capacity,  but  in  a  quasi  private  capacity,  in  which  the  municipal 
authorities  act  for  the  exclusive  benefit  of  the  corporation  whose 
interests  they  represent." 

We  have  no  doubt  of  the  correctness  of  that  decision,  and,  if  the 
facts  were  the  same  in  the  case  at  bar,  that  case  would  be  cheerfully 
recognized  as  high  authority  in  favor  of  the  appellant's  contention. 
But  in  one  respect  at  least  the  facts  of  this  case  are  essentially  differ- 
ent. There  the  city  was  the  owner  of  the  park  and  was  leasing  it  for 
its  own  private  emolument.  In  this  case  the  citv  of  Tacoma  is  not  the 
owner  of  Point  Defiance  Park,  and  has  no  interest  in  it  whatever  ex- 


^^'■^tji.  cepting  a  license  to  o£pn>v  and  control  it  for  the  purposes  of  a  public 
park^  It  is  frankly  conceded  on  behalf  of  the  appellant  that  if  the  acts 
complained  of  were  not  proprietary  merely,  but  public  and  govern- 
mental, the  city  is  not  liable  in  this  action.  While  it  is  not  always 
easy  to  draw  the  line  between  the  public,  or  governmental,  and  private 
powers  of  municipal  corporations,  we  think  the  respondent  city,  under 
the  facts  in  this  case,  in  improving  the  park,  was  exercising  a  power 
or  franchise  conferred  upon  it  for  the  public  good  and  not  for  private 
corporate  advantage.  And  this  being  so,  it  is  not  liable  for  the  acts 
or  omissions  of  its  officers  in  that  behalf.  Murtaugh  v.  City  of  St, 
Louis,  44  Mo.  479  ;  Hart  v.  Bridgeport,  13  Blatchf.  289  ;  Richmond  v. 
Long's  Achn'rs,  17  Grat.  375  ;  Mead  v.  New  Haven,  40  Conn.  72 ; 
Ham  V.  Mat/or,  etc.,  70  N.  Y.  459 ;  Tindley  v.  Salem,  137  Mass.  171 ; 
Hoivard  v.  Worcester,  153  Mass.  426  (12  L.  R.  A.;  27  N.  E.  11); 
Curranv.  Boston,  151  Mass.  505  (24  N.  E.  781);  Sherbounie  v.  Yuba 
County,  21  Cal.  113. 

In  Murtaugh  v.  *S'^  Louis,  supra,  it  was  sought  to  make  the  city  of 
^iUAXt^  g^^  Louis  respond  in  damages  for  injury  to  a  non-paving  patient  caused 
*^  I  by  the  negligence  of  hospital  offijcers  and  servants,  and  in  speaking  of 

^--^^^*^  I  the  non-liability  of  municipal  corporations  for  the  acts  of  their  officers 
.^  '^  I  and  agents,  the  court  declared  the  general  result  of  the  authorities  as 
Lo^^d.*^-*',      follows : 

„^j^tt^-<:jf         "Where  the  officer  or  servant  of  a  municipal  corporation  is  in  the 
o^   -  exercise  of  a  power  conferred  upon  the  corporation  for  its  private  bene- 


^iJC^ 


RUSSELL  V.   TACOMA.  G31 

fit,  and  injury  ensues  from  the  negligence  or  misfeasance  of  such 
officer  or  servant,  the  corporation  is  liable,  as  in  the  case  of  private 
coriiorations  or  parties  ;  but  when  the  acts  or  omissions  coujplained  of 
were  done  or  omitted  iu  the  exercise  of  a  corporate  franchise  con- 
ferred upon  the  corporation  for  the  public  good,  and  not  for  private 
corporate  advantage,  then  the  corporation  is  not  liable  for  the  conse- 
quences of  such  acts  or  omissions  on  the  part  of  its  officers  and 
servants." 

The  same  doctrine  was  enunciated  in  other  cases  above  cited ;  and 
in  Mead  v.  Neio  Haven  it  was  accordingly  held  that  the  city  was  not_ 
liable  for  the  negligence  of  an  inspector  of  steq,m  boilprs,  and  in 
Ham  V.  liayor,  that  the  city  was  not  liable  for  the  negligence  of  servants 
employed  by  the  department  of  public  instruction.  In  Tlndley  v. 
Salem  it  was  held,  upon  an  elaborate  review  of  the  authorities,  that 
the  defendant  city  was  not  liable  for  the  negligence  of  its  servants  in 
discharging  fireworks  which  were  purchased  and  used  for  the  purposes 
of  'aTpuHIc^  celebration.  ^In  Hoioard  v.  Worcester  the  plaintiff  was 
injured  by  the  negligent  blasting  of  rock  in  excavating  the  foundation 
for  a  public  school  house,  and  the  court  held  that  as  the  work  was 
purely  a  benefit  to  thp"pnhnn3  no  linbility  wns  thereby  created  against 
the  city.  See  also  Condict  v.  Jersey  City,  46  N.  J.  Law,  157  ;  Bryant 
V.  St.  ^Paul,  33  Minn.  289  (23  N.  W.  220) ;  and  Barney  v.  Loioell,  98 
Mass.  570. 

Upon  the  liability  of  towns  for  defects  in  their  public  commons,  the 
supreme  court  of  Massachusetts,  in  Clark  v.  Waltham,  128  Mass.  567> 
said  : 

' '  The  plaintiff  was  injured  while  travelling  upon  a  public  park  hav- 
ing footpaths  across  it,  which,  it  is  alleged,  the  defendant  had  negli-  V**-*  *^-^ 
gently  suffered  to  be  out  of  repair  and  unsafe.  The  park  was  con- 
veyed to  the  town  upon  the  condition  that  it  should  '  forever  after  be 
kept  open  as  and  for  a  common  for  the  use  of  said  inhabitants  of  the 
town  of  Waltham.'  By  accepting  the  deeds  of  conveyance,  the  town 
agreed  to  the  condition,  and  therefore  holds  the  park  for  the  use  of 
the  public.  It  had  constructed  footpaths  and  walks  over  the  park 
in  various  directions,  but  these  paths  were  not  a  part  of  the  system  of 
highways.  They  were  not  laid  out  as  public  ways,  and  the  town  is  not 
liable  under  the  statutes  respecting  highways  or  townways  for  any  de- 
fect or  want  of  repair  which  may  exist  in  them.  Olirer  v.  Worcester^ 
102  Mass.  489;  Gould  \.  Boston,  120  Mass.  300.  Nor  can  the  town 
be  held  liable  upon  the  ground  that  it  negligently  suffered  a  dangerous 
place  to  exist  in  the  park,  and  failed  to  give  proper  notice  to  persons 
using  the  park  by  its  invitation  or  license.  It  holds  the  park,  not  for 
it3_Qw n_profit  or_ emolument,  but  for  the  direct  and  immediate  use 
of  the  pubHc^ 

"  If  it  can  be  said  that  there  is  any  duty  in  the  town  to  construct 
paths  over  it,  or  to  keep  such  paths  in  repair,  it  is  a  corporate  duty, 
imposed  upon  it  as  the  representative  and  agent  of  the  public  and  for 


632 


WOKDEN   V.   CITY   OF   NEW   BEDFORD. 


the  public  benefit.  For  a  breach  of  such  a  duty,  a  private  action  can- 
not be  maintained  against  a  town  or  city,  unless  such  action  is  given 
by  statute." 

Other  reasons  are  urged  by  counsel  for  resix)ndent  for  sustaining  the 
judgment  of  the  lower  court,,  but  as  what  we  have  said  disposes  of  the 
case,  it  is  not  necessary  to  discuss  the  points  made. 

The  judgment  is  affirmed. 
^    Dunbar,  C.  J.,  and  Hott,  Stiles  and  Scorr,  JJ.,  concur. 


d.  Negligence  in  the  Performance  of  a  Commercial  Function. 
-vrcrv.W^  ^A^^     WORDEN  u    CITY   OF   NEW  BEDFORD. 

;  f  XT^    ^^  '-^»'^«J4*'''«^*^-4»,.iJjai881      131  Massachusetts,  23.1 

^^j^KL  Tort  for  personal  injuries  occasioned  to  the  plaintiff  b}-  falling  through 
^J^-^JUa^  a  trap-door  in  a  room  in  a  public  building  in  the  defendant  city,  known 
^jj^,^jrv  as  the  City  Hall.     Answer,  a  general  denial.     At  the  trial  in  the  8u- 


perior  Court,  before  Brif/ham^  C.  J.,  the  jury  returned  a  verdict  for 

the  plaintiff ;  and  the  defendant  alleged  exceptions,  the  substance  of 

which  appears  in  the  opinion. 

The  case  was  argued  at  the  bar,  and  was  afterwards  submitted  on 

additional  briefs,  by  F.  A.  MiJliken,  for  the  defendant,  and  -C.  L.  Bar- 
^^^'^^^^^^fiei/,  for  the  plaintiff. 
J   . 


X'^A^ 


Morton,  J.     Under  the  instructions  given  them,  the  jur}-  must  have 
found  that  the  citv  of  New  Bedford  was  the  owner  of  a  buildinor  known 
as  the  City  Hall,  used  for  the  ordinary*  municipal  purposes ;  that  it  had 
been  accustomed  to  let  it,  for  profit,  for  lectures,  exhibitions,  ahiuse- 
ments  and  other  like  purposes,  Iiaving  no  relation  to  municipal  atfairs 
or  interests  ;  that  at  the  time  the  injury  happened  to  the  plaintiff  it  had, 
acting  by  its  committee  on  public  property,  let  the  hall  and  a  smaller 
room  adjoining,  for  profit,  to  the  Southern  Massachusetts  Poultry  Asso- 
ciation ;  that  the  sum  paid  b}-  the  association  included  compensation 
for  the  lighting  and  heating  the  rooms  and  for  the  services  of  the  jani- 
^^fiU9AA.<tor,  who,  by  appointment  of  the  city,  had  the  care  of  the  building; 
-v-.*-"^      -,that  the  plaintiff  was  injured  solel}-  by  the  carelessness  of  the  janitor, 
^*''*^*^:i while  doing  acts  in  the  lighting  and  heating  of  the  rooms;  and  that 
the  plaintiff  was  rightfull}-  in  the  rooms  and  using  due  care  when  he 
received  the  injury.     These  facts  are  sufficient  to  establish  the  liabilit}'' 
t\   ,  ^      of  the  city. 
'T^i\j>  I      -^  ^^^y  *^''  ^^'^^  ^^  ^^°^  liable  to  a  private  citizen  for  an  injury  caused 
'V'^'^s  1  by  any  defect  or  want  of  repair  in  a  cit}'  or  town  hall  or  other  public 

1  Onlv  so  much  of  the  opinion  is  given  as  relates  to  a  single  point.  —  Ed. 


«r-< 


jc^-^i^^^^^^^^^y^^^^^  '^^  ^*"»^^^-«w!v4 


MULCAIRNS   V.   CITY   OF   JANESVILLE.  633 

building  erected  and  used  soleh*  for  municipnl  i)m'poses.  or  for  negli- 
gence of  its  agents  in  tlie  management  of  such  buildings.  This  is 
because  it  is  not  liable  to  private  actions  for  omission  or  neglect  to 
perform  a  corporate  dut}'  imposed  by  general  laws  upon  all  cities 
and  towns  alike,  from  the  performance  of  which  it  derives  no  compen- 
sation. 

But  when  a  cit}'  or  town  does  not  devote  such  building  exclusively  I ")\(^^4>n 
to  municipal  uses,  but  lets  it  or  a  part  of  it  for  its  own  advantage  and  l*icJ«^  V> 
emolument,  by  receiving  rents,  or  otherwise,  it  is  liable  while  it  is  so|Ay^^^^.  C« 
let  in  the  same  manner  as  a  private  owner  would  be.  Oliver  v.  Wor- '  ..J*'**^  y 
cester,  102  Mass.  489.     Wll  v.  Boston,  122  Mass.  344.  --  -    - 

But  the  defendant  contends  that  a  city  or  town  has  no  power  to  let 
its  public  buildings  for  private  uses,  that  the  letting  to  the  poultry  asso- 
ciation, if  made  by  the  cit}-,  was  ultra  vires,  and  therefore  it  is  not 
liable.  This  ground  is  untenable.  The  city  could  not  erect  buildings  "|^  Jr*"^/^ 
for  business  or  speculative  p u rposes,  but  having  a  city  hall,  l)uilt  in 
good  faitii  and  used  for  municipal  purposes,  it  has  the  riglit  to  allowll 


to  be  used  incidentall}'  for  other  purposes,  either  gratuitously  or  for  u 


compensnttion.     Such  a  use  is  withm  its  legal  authority,  and  is  com  mo  n"^/*^^!  ^ 
in  most  of  our  cities  and  towns.     French  v.  Quincy,  3  Allen,  9.  e^^IZi^^ 

•  •••••»•  \ 

"We  are  therefore  of  opinion  that,  upon  the  facts  proved  in  this  case, 
the  defendant  was  liable  ;  it  was  dealing  with  the  city  hall,  not  in  the 
discharge  of  a  public  duty,  but  for  its  own  benefit  and  gain  in  a  private 
enterprise,  in  the  same  way  as  a  private  owner  might,  and  was  lial)le 
for  negligence  in  the  management  of  the  property'  to  the  same  extent  . 
as  such  private  owner  would  be.^  Exceptions  overruled. 

MULCAIRNS   V.  CITY  OF  JANESVILLK^'^^^^^^^ 

1886.     ^1  Wisconsin,  2\?  ^^^^    A»^j3^ . '  -     * 


Orton,  J.  The  complaint  substantially  charges  that  the  city,  being  <Vf>  ""^  -h' 
authorized  so  to  do,  about  the  9th  day  of  August,  1884,  entered  upon  iU^  <;j^ 
the  construction  of  a  cistern,  for  the  use  of  the  fire  department  of  said 
cityTToF protection  against  fire  ;  tbaftBe  cit}'  was  authorized  to  and  did 
emplo}'  men  in  the  construction  of  the  same,  and  that  about  the  l6tU 
da}'  of  said  month  said  citj'  had  made  an  excavation  for  said  cistern 
and  erected  within  the  same  a  wall  of  stone  masonry,  along  the  sides 
of  the  same,  resting  upon  the  bottom  of  said  excavation,  about  40  feet  ^Q^^^^j^ 
long,  10  feet  high,.  20  inches  in  thickness,  and  about  12  feet  wide  ;  that  fcj^  ^_^ 
it  was  so  constructed  bj  the  city,  in  such  a  careless  and  negligent  »Ar^-Jv 
manner,  and  negflgently  allowed  to  so  remain,  to  the  knowledge  of  tEe"    4,^_Jl,J(j;; 

1  See  Cmnhlan  v.  Cambridge,  166  Mass.  268,  44  N.  E.  218;  Xicholson  v.  Detroit,  129 
Midi.  246,  88  N.  W.  695,  56  L.  R.  A.  601. 

2  Statement  and  arguments  omitted. —  Ed.     ^^  >•  ^«^S  -v^w  %  »i^  ^p.<M»»-«jL 


634  MULCAIRNS   V.   CITY    OF   JANESVILLE. 

cit}-,  that  on  the  day  last  aforesaid  a  portion  of  it  fell  upon  Tliomas 
Mulcairns,  the  husband  of  said  plaintiff,  who  was  employed  by  said 
cit}'  at  that  time  in  shovelling  earth  in  the  bottom  of  said  cistern,  in 
accordance  witli  such  employment,  near  said  portion  of  the  wall,  hav- 
ing no  knowledge  of  its  unsafe  condition  and  using  due  care  and  cau- 
tion, and  caused  his  death.  He  left  the  plaintiff  as  his  widow,  and 
seven  minor  children  dependent  upon  her  for  support. 

The  answer  admits  the  appointment  of  the  plaintiff  as  administratrix, 
the  incorporation  of  the  city,  that  it  was  so  engaged  in  the  construction 
of  a  cistern,  and  that  part  of  the  wall  thereof  fell  inward,  and  that 
Thomas    Mulcairns    was    injured    thereby,    and    died    in    consequence 
thereof;  but  denies  all  other  allegations,  and  alleges  that  the  cistern 
was  being  built  by  the  city  with  all  the  care  and  caution  possible  to  be 
used  ;  and  that  the  city  employed  workmen  known  to  be  skilful  and 
careful,  and  used  good  material ;  and  employed  one  James  Shearer  to 
superjyxtend  and  manage  the  construction^  ryf  th"  cistern,  and  that  he 
was  suitable  to  do  so  ;  and  that  said  cistern  was  constructed  in  a  skil- 
ful manner,  without  any  negligence  on  the  part  of  the  cit}' ;  and  that 
the  falling  of  said  wall  was  caused  or  contributed  to  b}'  the  want  of 
ordinary  care  of  the  deceased  ;  and  that  the  deceased  entered  upon  his 
work  with  full  knowledge  of  tlie  dangerous  condition  of  said  wall. 
The  complaint  most  clearly  states  a  cause  of  action  against  the  city, 
'^^^^       I  and 'tlie  ffrst  exception,  which  was  to  overruling  a  demurrer  ore  tenns 
^r^'"^^    I  to  the  complaint,  was  not  error.     The  answer  admits  that  the  wall  wa8 
'^^^""'"^^^r built  by  the  city,  through  the  agency  and  under  tlie  superintendence  of 
'  James  Shearer,  employed  for  that  purpose  b}*  the  cit}',  and  that  when 
1^^      it  was  built  it  fell  upon  and  killed  the  deceased. 
^^"^^   jL.  1.    The  point  made  b}-  the  learned  counsel  of  the  appellant,  that  the 

*^**^*^^»cit3'  is  not  liable  because  it  was  in  the  performance  of  a  public  dut\-  in 
which  the  cit^-,  as  a  municipal  corporation,  had  no  pecuniary  interest, 
and  the  injury  was  occasioned  by  the  act  or  omission  of  its  officers  or 
agents,  may  as  well  be  disposed  of  here,  because  it  arises  as  well  upon 
tlie  pleadings.  James  Shearer  was  not  one  of  the  public  agents  or 
officers  of  the  cit}',  but  specially-  employed  to  superintend  this  particu- 
lar work  for  the  city.     Such  is  the  effect  of  the  answer. 

The  case  cited,  and   the  first  one  on  the  question  in  this  state,  of 
...  Hayes  v.  Oshkosh,  33  Wis.  314,  goes  upon  the  doctrine  generall}'  rec- 

""^r^^         ognized  that  when  the  agents  acting  for  the  city  are  not  in  the  emplo}-- 
'"v^  '  ment  of  the  city,  but  act  rather  as  public  officers,  such  as  the  fire 

J-     ^^v^,^^^jlepartraent  provided  for  by  law,  and  the  city  does  nothing  more  than 
appoint  its  officers,  such  persons  perforin  duties  fixed  by  law  and  not 
'■  '^^^'      special  services  contracted  to  be  performed  under  employment  of  the 


A-Ot'-^ 


%-  -l^->-'"..      .^v..   ,.v.v,^     ^v,...;.  ivv,.v.v.       vvr       ..^       l.v,..v... ..........      .....j..„_ 

V'^""^        city.     The  distinction  between  the  two  cases  is  very  wide  and  quite 

apparent.     If  the  city  could  not  be  held  liable  in  such  a  case,  it  never 

^  could  in  any;  for  it  is  a  common  case  of  special  employment  for  the 


»5Sr 


BARRON    V.   DETROIT.  635 

performance  of  special  services  for  and  on  behalf  of  the  cit}'.  It  was  i  ^\^e«jt.o. 
the  legal  duty  of  tlie  city  to  construct  cisterns  for  fire  purposes,  and  \  ^Xfta^ 
it  was  engaged  in  the  attempted  performance  of  this  duty  through  1  CV;2*-^-^ 
its'  owjijgi;iy§,te^a^encies,  and  not  through  the  fire  department  or  its  ■  ^_^ 
officers,  or  other  officers  of  the  city  whose  duty  it  was  to  perform  such  -^^.J^A 
work.  1^^ 

Tlie  case  of  Spelman  v.  Portage,  41  Wis.  144,  which  is  clearly  in 
point,  most  clearlj"  points  out  these  distinctions.  The  distinction  is 
made  perhaps  more  clearly'  in  the  cases  of  Harper  v.  Mlhoaukee,  30 
Wis.  365,  and  Little  v.  3Iadiso7i,  49  Wis.  605,  Both  the  principle  and 
the  distinction  of  cases  are  fully  considered  and  clearly  established  in 
our  own  cases,  so  that  we  need  not  concern  ourselves  ver}-  much  about 
cases  in  other  states,  for  the  above  cases  were  decided  upon  a  full 
examination  of  authorities  elsewhere. 

[Remainder  of  opinion  omitted.] 

Judgment  forjplaintiff  affirmed. 


%^^\'^ 


\-^\ 


BARRON  V.  DETROIT^^Iti^i^^'^^  An-^-MU-s^v^    .  t>:3 


893.    94  Mich:m.         "^^^-^e/V^j^ 


Long,  J.  The  facts  in  this  case  are  not  in  dispute.  It  appears  that 
in  January,  1890,  by  resolution  of  the  common  council,  the  city 
engineer  was  instructed  to  prepare  plans  for  the  construction  of  a 
market  building.  The  plans  were  prepared  and  submitted,  in  response 
to  the  resolution,  and  the  board  of  public  works  was  directed  to  adver-  VNv.A-^ 
tise  for  proposals  for  constructing  the  building  in  accordance  there-  ^^-O'^^j^kSiju 
with.  Proposals  were  advertised  for,  and  the  board  of  public  works  6«4(j*_< 
reported  that  Patrick  Dee  was  the  lowest  bidder ;  and  by  instruction  of  ^^.^W-v-^ 
the  common  council  th^  board  entered  into  a  contract  for  tEe  construe-  V,j^y\^ 
tion  of  the  building  with  him,  which  contract  was  confirmed~T5yjEhe  ^ 
counciTr  The  plans  were  prepared  by  a  draughtsman  in  th^office  of^  f^^^ilM 
and  under  the  supervision  of,  the  city  engineer.  ^}fF\    ^ 

The  building  was  an  open  structure,  built  on  iron  columns  about  15  ^^  - 

feet  apart,  surmounted  by  a  roof  composed  of  wood  and  iron.  It  was 
built  in  the  form  of  a  cross ;  being  about  300  feet  one  way,  and  400 
feet  the  other.  The  columns  rested  upon  stone  piers,  but  were  not  ^-'*-v  "^^k/^ 
anchored.  At  the  time  the  plans  were  prepared,  the  propriety  of  an-  Mn^uoX 
choring  the  columns  was  discussed  by  the  draughtsm.an  and  engineer.  t^>  i^^ 
The  draughtsman  thought  they  ought  to  be  anchored,  but  the  engineer  ^  ^ouv/T 
thought  the  construction  strong  enough,  and  his  opinion  was  followed.  ^  ^^ 
He  claims,  however,  to  have  looked  the  plans  over  hurriedly,  and  that  X' 

he  did  not  examine  them  carefully,  for  the  reason  that  a  competent        >*^. 
superintendent  was  to  be  employed,  and  that  the  building  would  be 
properly  constructe'd  under  him,  and  if  any  defect  existed  the  omission 


v^/a 


636  BAKRON   V.   DETROIT. 

would  be  supplied  as  the  work  progressed.  The  superintendent  was 
appointed,  and  the  work  carried  on  under  the  contractor.  Before  it 
was  completed  some  members  of  the  board  of  public  works  expressed 
the  opinion  that  the  structure  was  dangerous,  and  would  go  down  in  a 
wind  ;  and  on  the  advice  of  the  city  engineer  it  was  examined  by  archi- 
tects, and  upon  their  recommendation  several  braces  were  added,  to 
strengthen  it.  One  of  the  architects  thus  called  says  that  he  advised 
the  inserting  of  some  strips,  and  putting  bolts  through  them,  and 
anchoring  them  down  ;  that  it  should  be  anchored  in  some  way.  These 
suggestions  were  referred  by  tke  board  of  public  works  to  the  contrac- 
tor, and  he  placed  extra  braces  in  the  roof,  but  did  not  anchor  the 
columns.  It  was  testified  by  some  of  the  architects  that  in  such  build- 
ings, in  this  part  of  the  country,  40  pounds  to  the  square  foot,  wind 
pressure,  is  usually  allowed  ;  and  it  was  further  shown  that  the  velocity 
of  the  wind,  to  exert  40  pounds  pressure,  is  90  to  100  miles  an  hour. 

On  December  23,  1890,  in  a  wind  blowing  about  50  miles  an  hour, 
this  market  building  fell,  no  other  buildings  in  the  vicinity  being  af- 
fected ;  so  that  it  is  apparent  that  the  fault  was  in  the  failure  to 
anchor  the  columns.  The  plaintiff  was  injured  by  the  falling  of  the 
building.  It  is  conceded  that  at  the  time  he  was  lawfully  upon  the 
^h>A^  \  premises,  having  paid  the  usual  license  fee  required  and  collected  by 
I  the  city.  His  claim  for  damages  having  been  refused  by  the  common 
o*-^^,-  rv. !  council,  this  suit  was  brought,  and  he  was  awarded  damages  in  the  sum 
""'^    of  $1,000. 

By  the  charter  of  the  city  of  Detroit  the  common  council  is  authorized 
to  erect  and  maintain  market  houses,  establish  markets  and  market 
places,  etc. 

It  is  contended  by  counsel  for  the  city  that  when  the  common  coun- 
cil of  the  city  authorized  the  making  of  plans  and  specifications  for  the 
market  building,  and  directed  the  making  of  the  contracts  for  its  con- 
struction, it  performed  a  purely  legislative  function ;  that  the  fault 
which  occasioned  the  collapse  of  the  building  was  in  the  plan,  which 
failed  to  provide  for  anchoring  it  so  that  it  could  not  be  lifted  from  its 
foundation  by  tlie  wind  ;  that  there  was  evident  miscalculation  as  to  the 
weight  being  sufficient  to  keep  it  in  place.  Counsel  insists  that  the 
faulty  is  with  legislative  action,  and  therefore  a  suit  grounded  upon  it  is 
grounded  upon  a  wrong  attributable  to  the  legislative  body  itself,  as  the 
determination  to  construct  the  public  work  and  the  prescribing  of  the 
pldns,  are  matters  of  legislation  on  behalf  of  the  city,  under  the  direc- 
tion of  its  legislative  body ;  that  in  carrying  out  the  plans  there  may  be 
negligence  attributable  to  ministerial  officers,  but  negligence  in  the 
plans  themselves  must  be  attributable  to  the  body  that  devised,  ordered, 
or  adopted  them,  —  and  therefore  the  action  cannot  be  maintained, 
under  the  principle  applied  in  Larkin  v.  County  of  Saginaw,  11  Mich. 
88  ;  City  of  Detroit  v.  Beckman^  3-4  Id.  125  ;  City  of  Lansing  y.  Toolan^ 
37  Id.  152;  Davis  v.  City  of  Jackson^  61  Id.  530. 


9 

V 


BARRON   V.   DETROIT.  637 

This  contention  would  undoubtedly  be  correct  if  the  city  had  been 
acting  purely  in  a  matter  of  public  concern,  in  its  governmental  capacity  ^^    ^ 

or  character,  and  the  cases  cited  would  then  be  applicable.  In  Larkin\~^^.Z^\ 
V.  County  of  Saginaw  the  plaintiff  sought  to  recover  for  damages!  >*-****^ 
caused  by  a  detective  bridge,  and  it  was  held  that  the  county  was  not| 
liable  for  the  acts  of  the  board  of  supervisors  in  the  exercise  of  its 
legislative  power.  In  Detroit  v.  Beckman,  City  of  Lansing  v.  Toolan, 
and  Davis  v.  City  of  Jackson,  the  actions  were  for  injuries  caused  by 
defects  in  public  highways.  In  each  of  these  cases  it  was  held  that,  \ '^•%*-*^ 
when  complaint  is  made  that  the  original  plan  of  a  public  work  is  so  \  ^^^~ 
defective  as  to  render  the  work  dangerous  when  completed,  the  fault  is  I  ^^  ^ 
with  legislative  action,  for  which  no  action  can  be  maintained.  Ashley  *y^jCX^ 
V.  City  of  Port  Huron,  35  Mich.  296,  is  to  the  same  effect.  ^TyVjj; 

Judge  Dillon,  in  his  work  on  Municipal  Corporations  (4th  ed.,  §  66), 
states  the  rule  as  follows  :     A  municipal  corporation —  TyJjlCji 

"Possesses  a  double  character:   The  one,  governmental,  legislative,      ^-^7\Z 
or  public ;  the  other,  in  a  sense,  proprietary  or  private.     The  distinction  ^i^-& 

between  these,  though  sometimes  difficult  to  trace,  is  highly  important, 
and  is  frequently  refen*ed  to,  particularly  in  the  cases  relating  to  the 
implied  or  common-law  liability  of  municipal  corporations  for  the  negli- 
gence of  their  sers'ants,  agents,  or  officers,  in  the  execution  of  corporate 
duties  and  powers.  On  this  distinction,  indeed,  rests  the  doctrine  of 
such  implied  liability.  In  its  governmental  or  public  character,  the 
corporation  is  made,  by  the  state,  one  of  its  instruments,  or  the  local 
depositary  of  certain  limited  and  prescribed  political  powers,  to  be  ex- 
ercised for  the  public  good  on  behalf  of  the  state,  rather  than  for  itself. 
In  this  respect  it  is  assimilated,  in  its  nature  and  functions,  to  a  county 
corporation,  which,  as  we  have  seen,  is  purely  part  of  the  governmental 
machinery  of  the  sovereignty  which  creates  it.  Over  all  its  civil,  politi- 
cal, or  governmental  powers  the  authority  of  the  legislature  is,  in  the 
nature  of  things,  supreme  and  without  limitation,  unless  the  limitation 
is  found  in  the  constitution  of  the  particular  state.  But,  in  its  ]3ro- 
prietary  or  private  character,  the  theory  is  that  the  powers  jxe  supposed 
jiot  to  be  conferred,  primarily~oFchiefly,  from^^nsiderations.connected 
with  the  government  bribe  state  at  Targe,  buf  for  the  private  advan- 
tage of  the  compact  community,  which  \b  incorporated  aif^  {\  distinnt 
legal  personality  or  corporate  individual ;  and  as  to  such  powers^,  and  to 
property  acquired  thereunder,  and  contracts  made  with  reference  there- 
to, the  corporation  is  to  be  regarded,  quo  ad  i'nr.^  na  a  pfiyntp.  corpora- 
tion,  or  at  least  not  public  in  tlie  sense  tliat  the  i^owor  of  the  leo-jslature 
over  it,  or  the  rights  rei»resented  by  it,  is  omnipotent." 

This  rule  is  supported  by  a  great  number  of  authorities  from  the 
several  states,  and  from  the  decisions  of  the  Supreme  Court  of  the  United 
States,  in  the  note  to  the  section  above  quoted.  It  is,  h(^wever,  chal- 
lenged by  Denio,  C.  J.,  in  Darlington  v.  Mayor,  31  N.  Y.  164.  He 
asserts  the  unlimited  power  of  the  legislature  over  municipal  corporations 


638  BAREON   V.   DETEOIT. 

and  their  property,  and  maintains  that  such  corporations  are  altogether 
public,  and  all  their  rights  and  powers  public  in  their  nature,  and  that 
their  property,  though  held  for  income  or  sale,  and  unconnected  with  any 
use  for  the  purposes  of  municipal  government,  is  under  the  control  of 
the  legislature,  and  not  within  the  provisions  of  the  constitution  pro- 
d>>^'^**^  tecting  private  property.  He  denies  the  distinction  between  the  public 
and  private  functions  of  city  governments,  and  maintains  that,  as  re- 
spects the  state,  all  their  powers  and  functions  are  public.  This  doctrine, 
however,  has  not  obtained  in  this  state  ;  but  it  is  held  that  cities  are 
mentioned  in  our  Constitution,  in  connection  with  local  corporations, 
which  are  put  upon  a  popular  basis  entirely  beyond  legislative  inter- 
ference, so  far  as  local  independence  of  action  is  concerned.  Opinion 
of  Campbell,  C.  J.,  in  People  v.  Hurlbut,  24  Mich.  86. 

In  Board  of  Park  Commissioners  v.  Common  Council^  28  Mich.  228, 
it  was  said  by  Mr.  Justice  Cooley : 

"  We  also  referred,  in  People  v.  Hurlbut,  to  several  decisions  in  the 
Federal  Supreme  Court,  and  elsewhere,  to  show  that  municipal  corpo- 
rations, considered  as  communities  endowed  with  peculiar  functions 
for  the  benefit  of  their  own  citizens,  have  always  been  recognized  as 
possessing  powers  and  capacities,  and  as  being  entitled  to  exemptions, 
distinct  from  those  which  they  possess  or  can  claim  as  conveniences  in 
state  government.  If  the  authorities  are  examined  it  will  be  found 
that  these  powers  and  capacities,  and  the  interests  which  are  acquired 
under  them,  are  usually  spoken  of  as  jyrivate,  in  contradiction  to  those 
in  which  the  state  is  concerned,  and  which  are  called  jjublic  ;  thus  put- 
ting these  corporations,  as  regards  all  such  powers,  capacities,  and 
interests,  substantially  on  the  footing  of  private  corporations." 

This  same  distinction  was  also  made  in  City  of  Detroit  v.  Corey, 
9  Mich.  165  ;  Mayor  v.  Park  Commissioners,  44  Id.  602  ;  Niles  Water 
Works  V.  City  of  Niles,  59  Id.  324  ;  Cooper  v.  Detroit,  42  Id.  584. 

Under  the  facts  in  this  case,  the  citv  must  be  held  to  the  same  degree 
of  care,  not  onl}-  in  the  construction,  but  in  the  plan  of  the  construction 
tself,  as  would  a  private  corporation  or  an  individual.     Under  the  pro- 
visions of  the  charter  granting  the  power  to  erect  it,  thei'e  was  no  im- 
perative dut}'  cast  upon  the  city  to  provide  for  a  market  building.     It 
could  build  it  or  not,  as  the  council  might  determine.     It  is  not  like  the 
case  of  a  public  highway,  or  the  building  of  a  bridge,  where  the  duty 
is  cast  upon  the  municipality,  by  general  law,  to  build  and  maintain 
them.     Had  this  building  been  owned  by  an  individual  or  a  private 
corporation,  the  liability  of  either  for  this  accident  would  not  have  been 
questioned,  under  the  facts  stated. 
I  j^^    The  judgment  must  be  attirmed,  with  costs. 
\t-      -Jf  The  other  Justices  concui-red.  -^l,,*--^    V' 


I 


CITY   OF   PEKIN   V.   McMAHON. 


639 


CITY  OF  PEKIN 


1895. 


V. 


^-..^IjSkSi  CUXSL^^L  ^-^'^^'^^^ 
McMAHON.  '  ^"J-**  ^^  «t-^oo-«rc^*-si 

154  ///.  141.  ^-N-oi,j-4<^...-^0»,     Vry.,,-^ 

This  is  an  action  on  the  case  brought  by  appellee,  as  adrninistra-  J-^  ) 
tor  of  the  estate  of  his  deceased  son,  Frank  McMahon,  against  appel- 
lant, the  City  of  Pekin,  to  recover  damages  for  the  death  of  plaintiff's 
intestate  alleged  to  have  been  caused  by  the  negligence  of  said  City. 
Verdict  and  judgment  in  the  Circuit  Court  were  in  favor  of  the  plaintiff. 
The  Appellate  Court  has  athrraQd  the  judgment,  and  the  present  appeal 
is  from  such  judgment  of  affirmance. 

The  declaration  alleges,  that,  on  April  12,  1892,  the  City  owned  lots 
7,  8,  9  and  10  in  Block  11  in  Bailey's  Addition  to  Pekin;  that,  for  a 
long  time  before  that  date,  it  had  caused  a  dangerous  hole  or  pit  to  be 
made  in  said  lots  by  digging  therein  and  Temoving  sand  and  gravel 
_tii£refrom-f-that  it  permitted  water  to  acciimulate  and  remain  in  said 
hole  or  pit,  so  that  it  became  a  nuisance  and  dangerous  to  the  lives  of 
citizens  and  "  of  children  of  tender  years  incapable  of  exercising  ordi- 
nars-  care  or  discretion  who  might  be  attracted  thereto ; "  that  it  was 
defendant's  duty  to  cause  the  same  to  be  drained,  so  as  to  remove  the 
water  therefrom ;  that  the  deceased,  a  child  of  tender  years  and  inca- 
pable of  exercising  ordinary  care  or  discretion,  was  attracted  thereto, 
and  necessarily  and  unavoidably,  on  account  of  defendant's  failure  to 
drain  the  water  from  said  pit,  without  fault  on  his  part  or  on  the  part 
of  his  parents,  fell  into  the  said  pit,  and  was  drowned.^ 

The  plea  was  the  general  issue,  with  notice  of  special  matter  of  de- 
fense to  the  effect,  that  the  premises  were  the  property  of  the  city ;  that 
it  was  incorporated  under  the  general  Act  of  incorporation ;  that  the 
lots  were  enclosed  by  a  fence  on  the  east  and  west  sides  thereof  and 
nearly  enclosed  on  the  south  and  north  sides  thereof ;  that  the  deceased 
entered  and  remained  upon  the  premises  as  a  mere  trespasser,  and  en- 
gaged in  play  without  the  knowledge,  permission  or  invitation  of 
defendant,  and  carelessly,  accidentally  or  negligently  fell  into  a  pool 
of  water  thereon,  and  was  drowned. i 

jMagruder,  J.  First,  the  main  question  in  the  case  arises  out  of  thci  (^X-V^^'^ 
refusal  of  the  trial  Court  to  give  the  second  and  third  instructions  askedl  *»  oJtW*-^-C 
by  the  defendant.  Is  an  individual  land  owner  obliged  to  respond!  "V^^^^^-^**"' 
in  damages  for  the  death  of  a  child  occurring  upon  his  premises  under  I  ^^^oiZ«! 
such  circumstances  as  are  developed  by  the  testimony  in  this  case?  jGL'o^. 

[The  court  answered  this  question  in  the  affirmative.] 

Second,  a  municipal  corporation  holding  property  as  a  private  owner  \  <3-^^  \*^ 
is  chargeable  with  the  same  duties  and  Qblig;ations,  which  devolve  on  I  '*-*-*5l  ^ 
individuals.     Where  it  owns,  leases  or  controls  lands,  houses,  clocks,  I    T^--^J-^'^ 

1  Statement  of  facts,  arguments,  and  part  of  opinion  omitted.  —  Ed. 


f^  ^  ^X^  -S-v^  c^.  ^^  i>'<^  r'^:~.fZ^ 


640  CITY    OF   PEKIN    V.   McMAHON. 

piers,  water  and  gas  works,  it  is  liable,  in  respect  to  the  care  of  the 

same,  for  injuries  arising  from  neglect,  in  the  same  manner  as  an  indi- 
vidual owner  is  liable,  and  must  respond  in  thp  samp  wny  for  prPP^Mlg 
or  suffering  nuisances.  Cooley  on  Torts,  marg.  pages  Gl'J,  G20  ;  15  Am. 
&  Eng.  Enc.  of  Law,  page  1155,  and  cases  cited;  Mackey  v.  City  of 
Vicksburg,  siqora;   Clark  v.  Manchester,  supra. 

Third,  the  plaintiff  introduced  in  evidence,  on  the  trial  below,  sec- 
^  tion  8  of  the  city  ordinances  of  the  city  of  Pekin  which  is  as  follows  ; 

ir-i^*-^'-^*''-^''*-*     "8.    Any  owner  or  occupant  or  person  in  possession  of  any  unen- 
Ls-*-**^        closed  lot  or  parcel  of  land  in  said  city,  who  shall,  by  digging  or  remov- 
^.^^^^J!«-«»-Mng  earth,  sand  or  gravel  from  any  such  lot  or  parcel  of  land,  make 
,o^CJs|         or  cause  to  be  made  in  such  unenclosed  lot  or  parcel  of  land  any  pit  or 
J^V  v-^-J<,*  hole  of  such  depth  and  character  as  to  be  considered  dangerous,  un- 
sightly or  a  source  of  annoyance  to  the  persons  residing  in  the  vicinity 
thereof  or  adjacent  thereto,  shall  bedeemed  guUt^_of  creatinganui- 
sance;  and  any  owner,  occupant  or  possessor  of  any  such  unenclosed 
Tot  or  parcel  of  land  who  shall  refuse  or  neglect  to  remed}'  or  abate 
said  nuisance,  by  filling  up  or  covering  or  securely  fencing  the  same, 
after  being  notified  so  to  do  by  the  superintendent  of  police,  or  by  any 
member  of  the  police  force,  or  any  person  aggrieved  thereby,  shall  be 
subject  to  a  penalty  of  not  less  than  five  dollars  nor  more  than  fifty 
dollars,  and  a  further  penalty  of  two  dollars  for  every  day,  after  the 
first  conviction,  that  said  nuisance  shall  by  him  be  continued," 

It  is  claimed,  that  the  court  erred  in  admitting  this  ordinance  in  evi- 
dence.    The  declaration  alleged  that  defendant  had  negligently  permit- 
ted large  quantities  of  water  to  accumulate  in  the  pit  upon  the  lots  in 
question,  "  so  that  the  same  became  a  nuisance  and  dangerous  to  the 
lives  ...  of  children  of  tender  years,"  etc.     The  plea  of  the  general 
issue  had  the  effect  of  putting  it  at  issue  whether  the  excavation  was  a 
^^^  <dujj,<»  nuisance  or  not ;  and  the  ordinance  was  to  some  extent  evidence  of  the 
aflBrmative  of  such  issue.     Moreover,  in  its  notice  of  special  matters  of 
defense,  the  defendant  had  stated  that  the  premises  "  were  nearly  en- 
closed upon  the  north  and  south  sides  thereof."     Under  the  ordinance 
it  was  an  owner's  duty,  after  notice,  to  "  securely,"  and  not  partially  or 
ineffectually,  fence  the  same.     We  are  not  satisfied  that  the  admission 
of  the  ordinance  injured  the  defendant.     In  connection  with  the  other 
proof  as  to  the  character  and  condition  of  the  excavation  upon  the  lots, 
,  it  had  a  tendency  to  show  what  the  character  and  condition  of  the  ex- 
'->'^O7p0p-^<7^  tavation  ought  to  have  been  under  the  requirements  exacted  by  the  city 
itself  of  private  owners  of  land.     The  City  was  thereby  estopped  from. 
^  ''^      denying  its  duty  under  the  circumstances. 


W 


HOLLMAN   V.    PLATTEVILLE. 

-  tft^„^>^^:i-i-|  ^^'^*^  HOLLMAN  V.  PLATTEVILLE. 

rN-.^.    '»^        r  r'^^'  jggg     ioITTjs.  94. 

Bardeen,  J.^  ...  The  only  question  we  need  determine  is  whether 
the  defendants  are  liable  in  damages  for  the  cutting  of  the  trees  on  the 
cemetery  lot  in  question.  As  we  view  the  case,  it  becomes  unnecessary 
to  determine  whether  plaintiff  has  the  legal  title  to  the  lot  or  not.  He 
entered  into  possession  of  the  same  in  1867,  inclosed  it  by  a  fence, 
and  planted  the  trees  that  were  cut  down,  and,  after  the  fence  was  re- 
moved, has  cared  for  and  attended  to  the  lot,  "  and  has  been  in  pos- 
session of  the  same,  claiming  it  as  a  family  burial  lot,"  ever  since. 
Whether  his  right  thereto  be  considered  a  mere  privilege,  right,  or 
easement  for  the  burial  of  his  dead,  or  whether  his  rights  have  ripened 
into  absolute  title  by  adverse  possession,  it  matters  not  for  the  pur- 
pose of  this  case. 

It  is  further  urged  that  the  city  was  engaged  in  an  act  for  the  public 
benefit,  in  which  it  had  no  particular  interest,  and  from  which  it  de- 
rived no  special  advantage  in  its  corporate  capacity,  and  therefore  it 
cannot  be  held  liable.  The  defendant  city  is  a  municipal  corporation, 
charged  with  certain  public  duties  in  relation  to  the  state  and  the 
public  generally,  as  well  as  with  obligations  that  are  local  and  relate 
to  the  welfare  of  its  members,  and  the  regulation  of  its  internal  affairs. 
In  the  administration  and  execution  of  its  legislative  and  governmental 
powers  —  such  powers  as  are,  in  their  very  nature,  public  and  in  aid 
of  the  state  —  it  sustains  no  liability  to  one  suffering  injury,  if  such' 
powers  are  imperfectly  or  negligently  executed.  ..  Dillon,  Mun.  Corp. 
§§  965,  966.  But,  as  respects  the  performance  and  execution  of  mere 
corporate  duties,  the  rule  is  different.  AVhen  the  act  done  is  within  its 
charter  powers  and  relates  to  the  administration  of  local  or  internal 
affairs,  as  distinguished  from  its  legislative,  discretionary,  or  quasi- 
judicial  duties,  the  rule  of  respondeat  sujyerior  applies,  and  the  city 
will  become  liable  for  the  act  of  its  servants  and  agents,  wliich  it  has 
authorized  or  adopted.  Dillon,  Mun.  Corp.  §  980.  In  this  case  there 
can  be  no  question  but  that  the  defendant  Stephens  was  the  servant  of 
the  city  and  was  acting  under  its  authority.  The  answer  expressly 
admits  that  the  acts  done  by  him  were  done  under  the  direction  and 
•authority  of  the  common  council.  The  city  had  a  right  to  adopt  rea- 
sonable regulations  for  the  management  and  control  of  the  cemetery. 
It  also  had  the  power  to  enforce  its  regulations  in  conformity  to  the 
law  granting  such  power.  It__hadno  ri^lit  or  authority  to  disturb  or 
invade  the  possession  of  the  lot  held  by  plaintiff  except  iu  puisnance., 
of  its  statutory  authority.     Its  fault  lay  in  the  attempted  exercise  of 

1  Facts,  arguments,  and  part  of  opinion  omitted.  —  Ed. 


JMJU-v 


642  LITTLE   V.    HOLYOKE. 

its  statutory  powers  in  an  unlawful  manner,  and,  having  authorized 
the  act  done  and  having  adopted  the  wrongful  act  of  its  servant,  as 
appears  by  its  answer,  the  city  must  be  held  to  respond  for  the  actual 
damage  done.  Dillon,  Mun.  Coi'p.  §  972 ;  Wilde  v.  Neio  Orleans,  12 
La.  Ann.  15.  See  Wilson  v.  Mineral  Point,,  39  Wis.  160;  Thayer  v. 
Boston,  19  Pick.  511;  Squiers  v.  Neenah,  24  "Wis.  588;  Crossett  v. 
Janesville,  28  Wis.  420. 


V"^ 


LITTLE  V.  HOLYOKE.  C^^  t^   (ttSC^  ^ 

1900.     177  Mass.  U4.  '^^''''V»\vw^>wt^V^ 

Hammond,  J,     This  is  an  action  of  tort  for  injuries  suflfeted  B^  ' 

the  plaintiff  in  descending  a  flight  of  stairs.    At  the  trial  the  defendant  t 
presented  ten  requests  for  instructions.     In  the  argument  before  us  it 
insists  only  upon  the  following,  namely:  1.    On  all  the  evidence  and 
the  pleadings  the  plaintiff  cannot  recover,  and  the  jury  must  find  for 
the  defendant.     2.   There  is  no  sufficient  evidence  that  the  plaintiff  H  Laj 
was  in  the  exercise  of  due  care,   and  the  plaintiff  cannot  recover.  Hvt, 
3.    There  is  no  sufficient  evidence  that  the  defendant  was  negligent,       .(/ 
and  the  plaintiff  cannot  recover.  f^-^ 

It  was  aoreed  at  the  trial  that  the  defendant  let  this  hall  to  the 
Woman's  Relief  Corps  for  the  day  and  night  in  question,  for  hire,  and 
furnished  the  lights ;  that  the  gallery  was  a  part  of  the  hall,  and  that 
the  city  furnished  light  and  a  janitor  to  take  care  of  the  hall. 

Without  reciting  the  evidence  in  detail  it  is  sufficient  to  say  we  bavo 
examined  it,  and  think  that,  in  addition  to  the  facts  agreed  upon  ao 
above   stated,   it  would  warrant  a  finding  that  the  defendant  occa- 
sionally let  the  large  hall  in  the  second  story  of  the  City  Hall  building 
for  public  gatherings  and  received  pay  therefor ;  that  on  the  evening 
in  question  the   hall  was  let  for  the   purpose   of  an   entertainment 
to   be   given   by   the   lessee;  that  it   was   understood   as   a  part  of 
the  bargain  that  the  defendant  should  light  and  keep  properly  lighted   .     ^ 
the  entry  and  stairs  leading  to  the  hall   and  to  the  gallery   of  the   "^^ 
same ;  that  the  stairs  leading  to  the  gallery  were  not  properly  lighted,  r^"^ 
but  that  one  at  least  of  the  lights  was  negligently  allowed  to  go  ''^-A  " 
out,    so   that  the   winding   part  of    the   stairs   was   in   comparative 
darkness;  that  the  descent  of  the  stairs  under  these  circumstances 
was  attended  with  danger;  that  the  plaintiff,  who  had  been  in  the   (yy   , 
gallery  at   the   entertainment,   in  attempting   to   descend   the    stairs  / 

fell  thereon  and  was  injured ;  that  she  was  at  the  time  in  the  exercise 
of  due  care,  and  that  the  accident  was  due  to  the  negligent  failure  of 
the  defendant  to  keep  the  stairs  properly  lighted.  It  is  true  that  the 
evidence  was  conflicting  on  many  of  these  points,  and  perhaps  a  find- 
ing the  other  way  might  have  been  reasonably  expected;  but  if  the      '•   ^ 


I 


DAVOUST   V.   ALAMEDA. 


643 


jury  made  the  findings  in  accordance  with  the  foregoing  statement  of 
what  the  evidence  warranted,  then  the  case  is  one  where  a  municipal 
corporation  has  engaged  in  a  private  enterj^rise  for  profit  and  has  been 
negligent  in  the  performance  of  a  duty  imposed  upon  it  in  the  pursuit  of 
tfiatbusTuess,  and  the  case  is  well  within  the  principles  luid  down  in 
''Ollcer  \.  IVorcester^l 02  Mass.  489,  Collins  v.  Greenfidd,  172  Mass. 
TST^i,  and  Marwedel  v.  C'oo/c,  154  Mass.  235,  and  the  plaintiff  may 
recover. 

The  exclusion  of  the  evidence  offered  by  the  defendant  to  show  that 
the  stairs  were  well  built,  that  winding  stairs  were  a  common  and  usual 
construction,  that  such  stairs  were  suited  to  the  peculiar  construction 
of  the  building  in  that  place,  and  that  the  staii-s  in  question  were  safe 
and  suitable,  did  not  harm  the  defendant.  The  plaintiff  did  not  claim 
that  these  stairs  were  improperly  made  for  winding  stairs,  if  winding 
stairs  were  to  be  in  that  place,  but  did  claim  that  if  such  stairs  were 
placed  there  they  should  be  properly  lighted.  It  was  not  a  question 
whether  winding  stairs  were  improper,  but  whether  at  the  time  of  the 
accident  these  stairs,  in  view  of  their  construction,  were  properly 
lighted. 

As  stated  by  the  judge  in  his  charge  to  the  jury,  the  contention  of 
the  plaintiff  was  that  "this  stairway  was  of  such  a  construction  and 
such  a  nature  .  .  .  that  it  was  dangerous  unless  there  was  sufficient 
light  to  enable  her  to  see  and  understand  and  appreciate  what  the 
danger  was."  •  V      t       '^ 

The  evidence  offered  to  show  that  the  amount  of  rents  was  insuffi-/  rW'''-^i'^ 
cient  to  pay  the  expense  of  maintaining  the  hall  was  properly  ex-\     oL-^V^ 
eluded.    It  was  of  no  consequence  whether  the  business  was  profitable.  \  ■  ^jJJa-^^';^ 
Collins  V.  Greenfield,  uhi  sujyra.  I    tdi^   *- 

It  being  conceded  by  the  defendant    that  the  hall  was  let  by  the      Ajl./>..;w\>« 
defendant,  no  question  as  to  the  authority  of  the  city  clerk  or  any 
other  city  official  inconsistent  with  that  admission  can  be  raised.  \ 


%^ 


^ 


^ 


W 


\ 


Exceptions  overruled. 


ALAMEDA.     '^ 


DAVOUST  V. 

1906.     149Cal.  69.  ilijU«2A*Lc,  >-^V 

McFarland,  J.^  —  This  action  is  to  recover  damages  for  the  death 
of  plaintiff's  wife  alleged  to  have  been  caused  by  the  negligence  of  de- 
fendant, the  city  of  Alameda,  in  operating  an  electric-lighting  plant 
owned  by  defendant,  and  used  for  the  purpose  offigKting  said  city 
and  furnishing  light  to  its  inhabitants  for  domestic  purposes.  The 
trial  court  granted  a  nonsuit  and  gave  judgment  for  defendant,  and 


.\ 


A 


10  3 


1  Part  of  the  opinion  and  concurring  opinion  of  Shaw,  J.,  omitted.  —  Ed. 


rvv-vA 


0)  "^-S . 


f\(,i 


J 


644 


DAVOUST   V.   ALAMEDA. 


jv^ 


WO^ 


JAf'W- 


u 
^ 


from  this  judgment  plaintiff  appeals.     There  is  a  bill  of  exceptions 
which  presents  the  evidence  and  the  rulings  of  the  court. 

It  does  not  appear  upon  what  ground  the  nonsuit  was  granted;  but 
the  main  point  argued  by  counsel  for  respondent  is  that  because 
the  defendant  is  a  municipal  corporation  it  is  not  liable  to  pay  any 
damages,  even  though  the  death  of  plaintiff's  wife  was  caused  by  the 
negligent  operation  of  the  electric  plant.  And  in  support  of  this 
contention  respondent  relies  on  Winhigler  v.  City  of  Los  Angeles,  45 
Cal.  36;  Denning  v.  State,  123  Cal.  316,  [55  Fac.  1000];  Chope  v. 
City  of  Eureka,  78  Cal.  588,  [21  Pac.  Rep.  364,  12  Am.  St.  Rep.  113], 
and  the  cases  there  cited.  These  cases  undoubtedly  establish  the  rule 
in  this  state,  although  it  has  been  held  differently  in  some  other  juris- 
dictions, that  a  municipal_corporatiou,  when  exercising  governmental 
functions  as  an  agent  of  the  sovereign  power,  is  not  liable  for  damages 
caused  by  the  negligence  of  its  employees,  unless  it  is  expressly  so^ 
made  liable  by  statute.  But  this  rule  applies  to  a  municipal  corpora- 
tion only  when  acting  in  its  governmental,  political,  or  public  capacity 
as  an  instrumentality  intrusted  by  the  state  with  the  subordinate  con- 
trol of  some  public  affair.  Such  a  corporation,  however,  has  a  double 
character  —  governmental,  and  also  proprietary  and  private  —  and 
when  acting  in  the  latter  capacity  its  liabilities  arising  out  of  either 
contract  or  tort  are  the  same  as  those  of  natural  persons  or  private 
corporations.  And  while  we  have  been  referred  to  no  case  in  this  state 
where  the  proposition  last  stated  was  directly  involved,  yet  in  all  the 
cases  from  this  state  cited  by  respondent  the  acts  complained  of  were 
connected  with  the  exercise  of  what  has  uniformly  been  held  to  be 
governmental  functions,  such  as  maintenance  of  public  streets  and 
roadsj  pjH^tection  from  fire,  etc.  However,  the  distinctioh  has  been 
frequently  recognized  and  stated  in  the  California  decisions.  In  Toil- 
chard  v.  Touchard,  5  Cal.  307,  the  court  say :  "  A  corporation,  both 
by  the  civil  and  common  law,  is  a  person,  an  artificial  person;  and 
although  a  municipal  corporation  has  delegated  to  it  certain  powers 
of  government,  it  is  only  in  reference  to  those  delegated  powers  that 
it  will  be  regarded  as  a  government.  In  reference  to  all  other  of  its 
transactions,  such  as  affect  its  ownership  of  property  in  buying,  selling, 
or  granting,  and  in  reference  to  all  matters  of  contract,  it  must  be 
looked  upon  and  treated  as  a  private  person,  and  its  contracts  con- 
strued in  the  same  manner  and  with  like  effect  as  those  of  natural  per- 
sons." In  San  Francisco  Gas  Co.  v.  San  Francisco,  9  Cal.  469, 
Justice  Field  says :  "  The  distinction  alluded  to  refers  to  the  double 
character  of  a  municipal  corporation;  its  public  and  political  character 
in  which  it  exercises  subordinate  and  legislative  powers,  and  its  private 
character  in  which  it  exercises  the  powers  of  an  individual  or  private 
corporation."  In  UUah  v.  JJkiah  W.  and  I.  Co.,  142  Cal.  179,  [75 
Pac.  775,  100  Am.  St.  Rep.  107],  this  court  says:  "The  distinction 
between  the  powers  conferred  on  municipal  corporations  for  public 
purposes  and  for  the  general  public  good,  and  those  conferred  for 


>\ 


\. 


DAVOUST  V.  ALAMEDA.  645 

private  corporate  purposes,  is  clearly  marked  by  the  decisions."  Cit- 
ing cases.  In  Denning  v.  State^  123  Cal.  316,  [55  Pac.  Rep.  lOOOj, 
it  was  held  that  the  state  was  not  liable  for  injury  caused  plaintiflf  by  ^  ^ 

nealioence  of  a  board  of  harbor  commissioners,  because  the  latter  were     L>>l^^v''>^ 
exercising   purely   governmental   powers ;  but   the   distinction    al)Ove       LceJt-JL 
mentioned  was  clearly  stated.     The  court  said,  among  other  things, 
that  the  plaintiff,  when  injured,  was  employed  in  a  distinct  branch  of 
the  service,  —  "  viz.  the  protection  against  or  extinguishment  of  lireSj  \ 


which,  even  in  the  case  of  municipal  corporations,  is  uniformly  held  to 
Fe~nie"ex'ercise  of  a  purely  governmental  function;  and  there  is  cer- 
tamry'as  strong  ground  for  distinguishing  between  the  different  func- 
tions of  the  board  as  there  can  be  for  distinguishing  between  the 
different  functions  of  a  municipal  corporation,  in  the  exercise  of  some 
of  which  the  corporation  is  liable  for  negligence,  while  in  others  it  is 
not."  See,  also,  Holland  v.  San  Francisco^  7  Cal.  361 ;  Argenti  v.  San 
Francisco,  16  Cal.  255  ;  Brown  \.  Board  of  Education,  103  Cal.  531,  [37 
Pac.  503]. 

In  other  jurisdictions  the  rule  that  municipal  corporations  are  liable 
like  individuals  and  private  corporations  when  the  injury  arises  out  of 
their  exercise  of  mere  proprietary  and  private  rights  has  been  extremely 
and  frequently  decided.  Indeed,  the  rule  has  become  text-book  law. 
In  Dillon  on  Municipal  Corporations  (sec.  66)  the  author,  having  said 
that  a  municipal  corporation  "possesses  a  double  character;  one  gov- 
ernmental, legislative,  or  public ;  the  other,  in  a  sense,  proprietary  or 
private,"  proceeds  as  follows  :  "  In  its  governmental  or  public  charac- 
ter, the  corporation  is  made,  by  the  state,  one  of  its  instruments,  or 
the  local  depositary  of  certain  limited  and  prescribed  political  powers, 
to  be  exercised  for  the  public  good  on  behalf  of  the  state  rather  than 
for  itself ;  .  .  .  but  in  its  proprietary  or  private  character,  the  theory  is 
that  the  powers  are  supposed  not  to  be  conferred,  primarily  or  chiefly, 
from  considerations  connected  with  the  government  of  the  state  at 
large,  but  for  the  private  advantage  of  the  compact  community  which 
is  incorporated  as  a  distinct  legal  personality  or  corporate  individual." 
There  are  numerous  authorities  to  the  general  point  of  the  distinction 
between  the  governmental  and  the  propriety  character  of  municipal 
corporations,  but  it  will  be  sufficient  here,  on  the  general  question,  to 
refer  to  the  opinion  of  the  supreme  court  of  Oregon  in  the  case  of 
Esherg  Cigar  Co.  v.  Portland,  34  Or.  282,  [55  Pac.  961,  75  Am.  St. 
Rep.  651],  where  the  authorities  are  nearly  all  cited.  See,  also.  South 
Carolina  v.  United  States,  199  U.  S.  437,  [26  Sup.  Ct.  110,  116]. 

And  that  the  respondent,  in  maintaining  and  operating  its  electric.  /  ci^^  c 
plant,  was  exercising,  not  its  governmental  functions,  but  its  proprie-  [   ^^_^;^)^ 
tary  and  private  rights,  is  entirely  clear.     There  is  obviously  no  dis-       V«-vo\ 
tinctionTso  far  as  the  law  on  the  subject  is  concerned,  between  an    .i^,^^^_^^ 
electric  plant  for  furnishing  light,  which  is  comparatively  a  new  thing,      \^ 
and  a  gas  plant  maintained  for  the  same  purpose ;  and  it  has  been  di-     . 
rectly  held  that  a  municipal  corporation  operating  a  gas  plant  is  liable    ^  >  ^ 


646 


DAVOUST   V.    ALAMEDA. 


^' 


for  injury  caused  bj  its  careless  management.  In  Dillon  on  Municipal 
Corporations  (sec.  954)  it  is  said :  "A  municipal  corporation  owning 
waterworks  or  gasworks  which  supply  private  consumers  on  the  pay- 
ment of  tolls  is  liable  for  the  negligence  of  its  agents  and  servants  the 
same  as  like  private  proprietors  would  be";  and  ample  authoritj'  is 
cited  sustaining  the  text.  In  Western  S.  F.  Society/  v.  Philadelpliia, 
31  Pa.  183,  [72  Am.  Dec.  730],  the  Supreme  Court  of  Pennsylvania 
say :  "  The  supply  of  gaslight  is  no  more  a  duty  of  sovereignty  than 
the  supply  of  water.  Both  these  objects  may  be  accomplished  through 
the  agency  of  individuals  or  private  corporations,  and  in  very  many 
instances  they  are  accomplished  by  those  means.  If  this  power  is 
granted  to  a  borough  or  a  city,  it  is  a  special  private  franchise.  .  .  . 
The  whole  investment  is  the  private  property  of  the  city,  as  much  so  as 
the  lands  and  houses  belonging  to  it.  .  .  .  It  [the  city]  stands  on  the  same 
footing  as  would  any  individual  or  body  of  persons  upon  whom  the 
like  special  franchises  had  been  conferred."  In  San  Francisco  Gas 
Co.  v.' San  Francisco,  9  Cal.  469,  the  court  say:  "The  purchase  of 
gas  involves  only  the  exercise  of  a  power  of  a  private  corporation ;  it 
requires  no  exercise  of  any  political  power.  It  is  as  much  an  act  of  a 
private  character  as  if  made  by  a  private  corporation."  In  Esherg 
Cigar  Co.  v.  Portland,  33  Or.  282,  [55  Pac.  961,  75  Am.  St.  Rep.  651], 
the  facts  were  that  the  city  of  Portland  owned  and  maintained  a 
system  of  waterworks,  and  the  plaintiff  therein  brought  the  action  for 
damages  foFTiiJunes  caused  by  the  negligent  management  of  the  said 
waterworks;  and  it  was  contended  for  defendant  "  that  the  waterworks 
belonged  to  the  city  in  its  public  or  governmental  capacity,  and  it 
therefore  is  not  liable  in  a  common-law  action  for  negligence  in  con- 
structing or  maintaining  the  same."  But  the  court  held  otherwise,  and, 
after  alluding  to  the  distinction  above  stated,  said :  "In  accordance 
with  this  distinction  it  is  quite  universally  held  that  when  a  municipal 
corporation  voluntarily  undertakes  to  construct  and  maintain  water  or 
gas  works  in  pursuance  of  statutory  authority,  for  the  purpose  of  sup- 
plying the  inhabitants  thereof  with  water  or  gas  at  rates  established  by 
the  city,  it  is  liable  for  an  injury  in  consequence  of  its  acts  in  construct- 
ing and  maintaining  such  works,  the  same  as  a  private  corporation  or 
individual."  And  surely  this  principle  applies  as  fully  to  the  main- 
tenance of  an  electric-lighting  plant  as  to  the  maintenance  of  water- 
works. In  the  case  at  bar,  the  city  of  Alameda  was  merely  given  the 
optional  privilege  of  constructing  and  maintaining  an  electric-lighting 
plant;  no  duty  was  imposed  on  it  to  do  so.  Our  conclusion  on  the 
main  point  above  discussed  is  that  the  respondent  cannot  escape 
liability  for  the  negligence  averred  in  the  complaint  on  the  ground  that 
it  is  a  municipal  corporation.^ 


1  See  Rhobidas  v.  Concord,  70  N.  H.  90,  47  Atl.  82, 85  Am.  St.  Rep.  604,  51  L.  R.  A. 

\381. 


:v 


a''.^. 


LIBBY  V.   PORTLAND.  647 

LIBBY  ..  PORTLAND.    ^T^ct^    cM^^^ 
1909.     105  Me.  370.  \ 


Action  on  the  case  for  personal  injuries  alleged  to 


Cornish,  J 
have  been  sustained  by  the  plaintiff  by  reason  of  the  dfif££tive  condi- 
tion  of  the  basement  step  of  a  building  belonging  to  the  defendant. 
TKe'writ  contains  two  counts.  A  general  demurrer  was  filed  to  each 
count.  The  presiding  Justice  overruled  both  demurrers  and  the  de- 
fendant alleged  exceptions.  If  eiTher  count  sets  forth  a  cause  of 
action,  the  exceptions  must  be  overruled. 

The  first  count  alleges  in  substance  that  the  defendant  was  the  law- 
ful owner  and  in  the  lawful  possession,  control  and  management  of  a 
certain  farm  witli  the  buildings  thereon  which  it  was  operating  in  the 
usual  method  of  husbandry  and  that  ''  all  of  said  buildings,  land  and 
other  property  were  then  and  there  used  by  the  said  defendant  for  its 
own  emolument,  profit  and  advantage."  It  nowhere  alleges  or  even 
intimates  that  this  was  a  poorjarm  and  thai"  the  building,  where  the 
Injury  was  received,  was  a  city  almshouse,  i'he  second  count  is  based 
squarely  on  the  allegation  of  an  almshouse,  in  the  maintenance  of 
which  negligence  is  charged.  It  is  necessary  to  consider  the  allega- 
tions of  the  first  count  alone,  the  objection  to  which  on  the  part  of  the 
defendant  is  that  the  alleged  negligence  appears  to  have  resulted  from 
the  performance  of  ultra  vires  acts  by  the  city  and  that  the  city  can- 
not be  held  liable  in  the  performance  of  such  acts.  This  leads  us  to 
a  brief  consideration  of  the  rights,  powers,  duties  and  liabilities  of 
municipal  corporations  in  this  State. 

In  the  absence  of  any  special  rights  conferred  or  liabilities  imposed 
by  legislative  charter,  towns  and  cities  act  in  a  dual  capacity,  the 
one  corporate,  the  other  governmental.  To  the  former  belongs  the 
performance  of  acts  done  in  what  may  be  called  their  private  character, 
in  the  management  of  property  or  rights  held  voluntarily  for  their  own 
immediate  profit  and  advantage  as  a  corporation,  although  ultimately 
inuring  to  the  benefit  of  the  public,  such  as  the  ownership  and  manage- 
ment of  real  estate,  the  making  of  contracts  and  the  right  to  sue  and 
be  sued ;  to  the  latter  belongs  the  discharge  of  duties  imposed  upon 
them  by  the  Legislature  for  the  public  benefit,  such  as  the  support  of 
the  poor,  the  maintenance  of  schools,  the  construction  and  maintenance 
of  highways  and  bridges,  and  the  assessment  and  collection  of  taxes. 
This  distinction  is  sharply  defined  in  a  long  line  of  decisions  of  which 
it  is  necessary  to  cite  only  the  following :  Easfmafi  v.  Mi-redith,  36 
N.  H.  284;  Oliver  v.  Worcester,  102  Mass.  489;  Small  v.  Danville, 
51  Maine,  359  ;  Bryant  v.  Westhrook,  86  Maine,  450.  The  Revised 
Statutes  recognize  this  twofold  character,  ch.  4,  sec.  1,  making  the  in- 
habitants of  each  town  a  body  corporate,  and  ch.  1,  sec.  1,  making 
towns  a  subdivision  of  the  State.  .,  ^.    a 


■^-^ubV 


648  LIBBY   V,    PORTLAND. 

The  precise  question  is  whether  the  city  of  Portland  acting  in  its 
corporate  capacity  could  lawfully  own,  control  and  manage  a  farm 
house  within  its  limits,  disconnected  from  any  public  use,  and  for  its 
own  emolument,  profit  and  advantage. 

1.  It  may  be  conceded  that  a  city  or  town  would  not  have  the  right 
to  raise  money  by  taxation  for  the  purchase  of  such  a  farm  any  more 
than  for  the  establishment  of  manufactories.  Opinion  of  Justices,  58 
Maine,  590,  or  for  the  erection  of  buildings  for  the  purpose  of  renting 
them  as  stores,  or  banks,  or  halls.  French  v.  Quincy,  3  Allen,  9. 
V|  But  it  does  not  follow  that  a  city  or  town  might  not  be  the  law- 

^'  ful  and    legal  owner  of  a  farm  or  of  a  block  of  rentable  buildings 

and  might  not  as  such  owner  maintain  the  same  for  its  pecuniary 
advantage. 

Suppose,  by  way  of  illustration,  that  the  municipal  officers  of  a 
town  bid  in,  in  behalf  of  the  town,  real  estate  sold  for  non-payment 
of  taxes,  as  they  are  authorized  to  do  by  R.  S.,  c.  10,  sec.  85.  It  is 
clearly  the  purpose  of  the  statute  that  the  title  shall  vest  in  the  town, 
if  the  statutory  proceedings  have  been  complied  with  and  the  property 
j  is  not  redeemed  by  the  owner.     Such  vesting  of  title  confers  upon 

^Tj  the  town  all  the  ordinary  incidents  of  lawful  ownership,  among  which 

''  is  the  right  to  use  and  utilize.     Must  the  town,  although  the  lawful 

owner,  yet  because  it  is  a  town,  let  the  property,  if  land,  lie  fallow,  or 
if  buildings,  remain  vacant  and  unrented?  Such  a  hollow  result  can- 
not be  the  purpose  of  the  statute. 

Suppose  again  that  some  benefactor  should  convey  by  deed,  or 
devise  by  will,  such  real  estate  to  the  town  as  a  gift,  would  not  the 

title  vest  and  would  not  the  town  be  authorized  to  manage  and  main- 
*  .... 

tain  the  property  for  profit  until  some  other  disposition  of  it  might  be 

,\slk^^  deemed  advisabk?  Gifts  of  real  estate  should  stand  on  no  different 
basis  than  gifts  of  money,  and  certainly  the  treasury  would  be  law- 
fully enriched  by  such  benefactions,  in  either  form. 

The  authorities  so  hold.  Dillon  on  Municipal  Corp.,  Vol.  2,  sec. 
566,  states  the  principle  thus :  "  Municipal  and  public  corporations 
may  be  the  objects  of  public  and  private  bounty.  This  is  reasonable 
and  just.  They  are,  in  law,  clothed  with  the  power  of  individuality. 
They  are  placed  by  law  under  various  obligations  and  duties.  Bur- 
dens of  a  peculiar  character  rest  upon  compact  populations  residing 
within  restricted  and  narrow  limits,  to  meet  which,  property  and 
revenues  are  absolutely  necessary,  and,  therefore,  legacies  of  personal 
property,  devises  of  real  property,  and  grants  or  gifts  of  either  species 
of  property  directly  to  the  corporation  for  its  own  use  and  benefit,  in- 
tended to  and  which  have  the  effect  to  ease  it  of  its  obligations  or 
lighten  the  burdens  of  its  citizens,  are,  in  the  absence  of  disabling  or 
restraining  statutes,  valid  in  law." 
^v^-vl-■^^^M^^*  There  is  no  such  disabling  statute  in  this  State,  but  on  the  contrary 
5^  cities  and  towns  are  expressly  authorized  to  receive    and  carry  out 

the  terms  of  conditional  gifts,  R.  S.,  c.  4,  sec.  80  and  81,  and  of  trust 


LIBBY   V.   PORTLAND.  649 

funds,  R.  S.,  c.  4,  sec.  82-85.  The  necessity  of  express  action  on  the 
part  of  the  municipality  in  fulfilling  the  conditions  of  such  gifts  and 
trusts  rendered  necessary  the  passage  of  an  enabling  statute.  But  ia 
tbe  absence  of  any  prohibiting  statute,  such  municipality  in  its  corpo- 
rate capacity  may  receive  and  hold  gifts  of  either  real  or  personal 
estate.  2  Abbott  Mun.  Corp.,  sec.  720,  while  questioning  the  doctrine 
as  an  academic  proposition  admits  it  to  be  the  law  of  the  decisions. 

Worcester  v.  Eato?i,  13  Mass.  371,  was  a  real  action  based  upon  a 
deed  of  real  estate  to  the  town  in  consideration  that  the  grantor  should 
be  supported  during  her  natural  life,  and  the  point  was  raised  in  defense 
that  the  town  could  not  take  the  premises  as  grantee.  In  overruling 
this  defense  the  court  say  :  "With  respect  to  the  capacity  of  the  de- 
mandants to  take  by  purchase  and  to  hold  real  estate,  we  cannot  deny 
to  towns  such  right,  since  by  the  immemorial  usage  of  the  country,  it 
appears  to  have  been  an  incident  to  their  corporate  powers.  As  early 
as  the  year  1679,  provision  was  made  by  a  colonial  act  respecting 
lands,  woods,  &c.  owned  by  towns  in  their  corporate  capacity ;  and 
authority  was  given  to  the  inhabitants,  by  vote  of  the  major  part,  to 
dispose  of  the  same  by  grant  of  lots  for  settlement,  and  it  is  well 
known  that  many  towns,  at  this  day,  are  owners  of  real  estate,  which 
they  hold  in  their  corporate  capacity,  other  than  such  as  may  be  neces- 
sary to  erect  school-houses  and  other  public  buildings  upon.  Whether 
the  inhabitants  of  a  town  can  be  assessed,  to  raise  money  for  the 
purchase  of  lands,  to  be  used  for  any  other  purpose  than  the  exe- 
cution of  some  lawful  requisition,  is  a  different  question.  But  there 
seems  to  be  no  reason  why  there  may  not  be  a  gift  or  a  devise  to  the 
inhabitants." 

This  case  has  been  cited  with  approval  in  Oliver  v.  Worcester,  102 
Mass.  489,  and  Commonwealth  v.  Wilder,  127  Mass.  1,  the  court 
affirming  in  the  last  case  that  "there  is  no  provision  in  the  statute  for- 
bidding towns  to  hold  real  estate  for  any  particular  purposes." 

New  Shoreham  v.  Ball,  14  R.  I.  566,  was  an  action  of  ejectment, 
the  plaintiff  town  in  proof  of  title  adducing  evidence  of  possession  for 
more  than  twenty  years.  The  defendant  contended  that  the  town 
could  not  acquire  title  by  possession  for  any  other  than  municipal 
purposes,  but  the  court  speaking  through  Chief  Justice  Durfee  held 
otherwise  in  these  words:  "The  cases  cited  in  support  of  the  excep- 
tions do  not  go  to  the  point  that  a  town  cannot  acquire  land  by  posses- 
sion for  other  than  municipal  purposes,  but  only  to  the  point  that  it  is 
ultra  vires  for  a  town  to  purchase  land  for  other  than  such  purposes. 
We  think  this  is  quite  a  different  proposition ;  for  a  town  cannot 
purchase  land  without  expending  its  moneys,  and  it  has  no  right  to 
expend  its  moneys,  raised  by  taxation  or  otherwise  for  municipal 
purposes,  for  other  purposes.  The  acquirement  of  land  by  possession 
does  not  involve  an  expenditure  any  more  than  does  the  acquirement 
of  land  by  deed  of  gift  or  by  devise ;  and  it  has  been  decided  that  a 
gift  or  devise  of  land  to  a  town  is  good,  even  though  the  land  be  given 


650  LIBBY   V.   PORTLAND. 

or  devised  in  general  terms,  and  be  accepted  without  any  intent  to  use 
it  directly  for  municipal  purposes.  .  .  .  Land  so  given,  even  when 
not  wanted  for  municipal  purposes,  may  be  applied  by  sale  or  lease  to 
the  alleviation  of  municipal  burdens." 

This  same  principle  has  been  recognized  frequently  in  the  decisions 
of  this  court.  Marston  v,  Scarborough,  71  Maine,  267;  Camden  v. 
Village  Corporation,  77  Maine,  530-535  ;  Bulger  v.  Eden,  82  Maine, 
352;  Keeley  v.  Portland,  100  Maine,  260-265. 

Moreover  the  charter  of  the  City  of  Portland  expressly  provides  that 
the  city  council  "  shall  have  the  care  and  superintendence  of  city 
buildings  and  the  custody  and  management  of  all  city  property  with 
power  to  let  or  sell  what  may  be  legally  let  or  sold ;  and  to  purchase 
and  take,  in  the  name  of  the  cit3\  such  real  or  personal  property  .  .  . 
\  as  they  may  think  useful  to  the  public  interest."  Sec.  4,  chap.  248  of 
Spec.  L.  1832,  sec.  7,  ch.  275,  Sp.  Laws,  1863.  The  "  custody  and 
management  of  all  city  property  "  must  include  all  to  which  the  city 
has  title,  and  not  simply  what  is  taken  or  purchased  for  municipal 
purposes. 

\        '•       2.   From  this  proposition  of  lawful  ownership  follows  another  that 
* )       is  equally  well  settled,  viz.,  That  a  city  or  town  holding  property  for 

^   >  ^   its  own  profit  or  gain  is  liable  for  negligence  in  its  management  to  the 
same  extent  that  business  corporations  or  individuals  would  be. 

"  When  this  legal  condition  exists,  the  public  corporation  may,  by 
the  exercise  of  an  express  or  an  assumed  power,  acquire  property  in 
this  capacity ;  and  where  this  is  done  it  will  be  treated  as  a  private 
corporation  and  subject  to  all  the  rules  of  law,  regulating  rights  and 
liabilities  as  devolving  upon  a  private  individual.  ...  Its  rights  and 
its  liabilities  are  measured  strictly  by  the  laws  which  determine  all 
private  rights  and  liabilities."     2  Abb.  Mun.  Corp.,  sec.  720. 

Woodward  v.  Boston,  115  Mass.  81,  was  an  action  of  tort  brought 
to  recover  damages  for  the  alleged  conversion  of  a  building  that  had 
been  sold  at  auction  by  the  city  to  the  plaintiff.  The  court  say :  "In 
the  sale  of  this  building  the  city  acted,  in  its  capacity  as  a  proprietor 
in  the  management  of  property  held  for  its  profit  and  advantage  as  a 
corporation,  and  as  to  it,  has  substantially  the  same  rights  and  liabili- 
ties as  a  private  individual."  See  also  Oliver  v.  Worcester,  102  Mass. 
489-500;  Hill  v.  Boston,  122  Mass.  344-359;  Haley  \.  Boston,  191 
Mass.  291-292 ;  SavannaJi  v.  CulWis,  38  Ga.  334. 

The  decision  in  Moidton  v.  Scarborough,  71  Maine,  267,  must  rest 
■  squarely  on  this  principle.  That  case  came  to  this  court  on  demurrer 
to  the  declaration  in  which  the  plaintiff  alleged  that  the  defendant 
town  was  guilty  of  negligence  in  the  management  of  a  certain  ram 
owned  and  controlled  by  it.  Like  the  case  at  bar  the  declaration  was 
barren  of  any  allegation  or  intimation  that  the  property  was  used  in 
connection  with  the  farm  maintained  by  the  town  for  the  support  of 
the  poor.  Counsel  for  defendant  in  that  case  sharply  contended  that 
"  a  town  cannot  own  property,  except  when  necessary  to  aid  in  the 


^ilBBY   V.    PORTLAND. 


651 


performance  of  duties  imposed  on  it  by  law.  For  a  town  to  be  '  owner 
and  possessor  of  a  ram '  otiierwise  than  in  the  line  of  its  statutory 
duties,  is  ultra  vires."  The  language  of  the  court  in  answer  to  this 
contention  is  this  :  "  It  is  not  claimed  in  support  of  the  demurrer  that 
the  declaration  is  defective ;  but  it  is  contended  in  behalf  of  the  de- 
fendants, that  the  town  had  no  legal  authority  to  own  and  keep  a  ram; 
that  the  act  was  ultra  vires,  and  that,  therefore,  the  town  is  not  liable. 
It  is  admitted,  however,  by  the  defendants'  counsel,  that  if  the  town 
could  legally  own  and  keep  the  ram  for  any  corporate  purpose,  for 
profit  and  gain,  then  it  rests  under  the  same  liability  as  a  person  or 
private  corporation  for  its  proper  care  and  control.  This  is  the  well 
settled  rule  of  law." 

The  opinion  then  discusses  the  right  of  a  town  to  maintain  a  farm 
for  the  support  of  the  poor  and  to  stock  it  for  ordinary  farm  purposes, 
and  holds  the  declaration  good.  Later  cases  have  cited  this  decision 
with  api)roval.  Bulger  v.  Eden,  82  Maine,  352  ;  Sibley  v.  Lumbering 
Assoc,  93  Maine,  399-402 ;  Keeley  v.  Portland,  100  Maine,  260-265. 
In  this  last  case,  after  considering  the  non-liability  of  a  municipal  cor- 
poration to  a  private  action  for  neglect  to  perform,  or  negligent  per- 
formance of,  corporate  duties  imposed  upon  it  by  the  legislature, 
unless  such  liability  to  action  has  been  given  by  statute,  the  court 
.adds :  "  It  is  true  there  are  limitations  to  this  rule,  or  conditions  to 
which  it  is  not  applicable,  the  most  important  perhaps  of  which  is 
this:  A  municipal  corporation  lawfully  owning  and  controlling  prop- 
erty not  in  the  performance  of  a  public  duty  enforced  upon  it  by  law, 
but  wholly  or  partially  for  its  own  profit  or  gain,  is  liable  for  negli- 
gence in  the  management  of  such  property  to  the  same  extent  as 
business  corporations  or  individuals  must  be." 

The  municipality  as  proprietor  is  not  to  be  confounded  with  the 
municipality  as  legislator  or  custodian  for  the  public  welfare.  If  a 
building  is  maintained  solely  for  a  public  purpose  no  liability  on  the 
part  of  the  city  arises  for  accidents  in  connection  therewith ;  exca- 
vation in  school  house  yard,  Bigelow  v.  Randolph,  14  Gray,  541 ;  un- 
safe stairway  in  school  building,  Sail  v.  Boston,  122  Mass.  344; 
defective  heating  apparatus  in  school  building,  Wixon  v.  Newport,  13 
R.  I.  454  ;  unsafe  floor  in  town  house,  Eastman  v.  Meredith,  36  N.  H. 
284.  But  when  property  is  used  or  business  is  conducted  by  a  city 
principally  for  public  purposes  under  the  authority  of  law,  but  inci- 
dentally and  in  part  for  profit,  the  city  is  liable  for  negligence  in 
management.  Thus,  for  injury  sustained  in  falling  through  a  trap 
door  in  a  hall  let  for  hire,  in  a  city  building,  JVorden  v.  Neiv  Bedford, 
131  Mass.  23  ;  or  l>ecause  of  insufficient  lighting  of  the  approaches  to 
such  hall.  Little  v.  Holyoke,  177  Mass.  114;  where  the  town  engaged 
in  crushing  stone  and  repairing  road  for  a  street  railway  company, 
Collins  V.  Greenfield,  1 72  Mass.  78  ;  where  the  town  used  a  stone 
quarry  in  part  for  the  public  streets  and  in  part  for  the  sale  of  stone, 
Duggan  v.  Peabody,  187  Mass.  349.     The  liability  in  the  cases  last 


Ur 


5^' 


luuJ^ 


652  LIBBY  V.   PORTLAND. 

cited  is  created  when  public  use  gives  way  to  use  for  private  gain. 
Larrabee  v.  Peabody,  128  Mass.  561.  If  then  a  city  is  liable  for 
accidents  in  a  part  of  a  public  building  used  for  private  gain  it  must 
certainly  be  liable  when  the  entire  building  is  so  used.  And  the  same 
rule  would  apply  to  any  other  property  lawfully  held  and  maintained 
for  private  gain  whether  it  be  a  hall,  a  business  block  or  a  farm 
house. 

The  cases  cited  by  the  defendant  do  not  reach  the  point  under  con- 
sideration. They  involved  acts  clearly  ultra  vires,  as  the  construction 
of  an  embankment  across  two  channels  of  a  stream  in  Anthony  v. 
Adams,  1  Met.  284 ;  the  digging  of  a  ditch  across  the  land  of  a  private 
individual  in  Steele  v.  Deering,  79  Maine,  343  ;  and  the  maintenance 
of  a  public  ferry  in  Hoggard  v.  Monroe^  51  La.  Ann.  683,  44  L.  R.  A. 
477. 

Our  conclusion  therefore  is  that  since  the  City  of  Portland  may  be 
"  the  lawful  owner  and  in  the  lawful  possession,  control  and  manage- 
ment "  of  the  property  in  question  and  may  be  liable  for  "  negligence  in 
connection  with  the  maintenance  thereof  for  its  own  emolument,  profit 
or  advantage,"  and  since  these  facts  duly  alleged  in  the  declaration  are 
admitted  to  be  true  by  the  demurrer,  the  first  count  sets  forth  a  cause 
of  action  and  the  demurrer  thereto  was  properly  overruled. 

Exceptions  overruled. 


HORNER  V.    COFFEY.  653 


CHAPTER  VI. 

REMEDIES.  ^  '^       '^  I    *^^ 


HORNER  V.  COFFEY.  ^  '^-^^^^^'^'^'^ifj- 

1853.     25  Mississippi,  434.1  '  '~*^  \  ^         J  Q 

Fisher,  J.     This  case  is  before  us  upon  an  appeal  from  a  decree  of  «. 

the  vice-chancery  court  at  Natchez.  ^'^''^"jt 

The  only  point  presented  b^'  the  record  for  adjudication  is,  whether  *■ 

the  individual  property  of  the  appellee,  one  of  the  selectmen  and  an 
inhabitant  of  the  town  of  Grand  Gulf,  is  liable  to  levy  for  the  purpose 
of  satisfying  a  juHgment  against  the  president  and  selectmen  of  said        -^""jU- 
town  in  their  corporate  capacity.  feo'V^ 

The  seventh  section  of  the  act  of  the  legislature,  incorporating  the 
town  of  Grand  Gulf,  says :   "  That  the  said  president  and  selectmen         y^MJV" 
are  constituted  a  bod^'  politic  and  corporate  in  fact ;  and  in  the  name  of  '  Q** 

the  town  of  Grand  Gulf,  and  by  that  name,  they  and  their  successors 
in  office  shall  have  perpetual  succession,  shall  have  a  common  seal,  may 
purchase,  hold,  and  conve}-  property' ;  and  by  the  name  and  style  afore- 
said, shall  be  persons  capable  in  law  of  suing  and  being  sued  in  all  man- 
ner of  suits  or  actions,  either  at  law  or  in  equity,"  —  "  and  may  do  all 
other  acts  incident  to  bodies  corporate." 

The  tenth  section  of  the  act,  gives  the  president  and  selectmen  power 
to  raise  a  revenue  for  town  purposes,  by  taxing  such  property  as  is 
liable  to  taxation  under  the  existing  laws  of  this  state,  "  Provided  such 
tax  shall  not  exceed  twent3--five  cents  on  every  hundred  dollars'  worth 
of  such  property  in  any  one  year."  Acts  of  1833,  9G,  97.  These  being 
the  only  provisions  of  the  chaxteiJaearing  upon  the  question  under  con- 
sideration, it  will  at  once  appear,  that  it  contains  no  express  provision 
in  regard  to  the  right  asserted  by  the  appellant,  |o_Xi:sfirt  to  the  indi- 
vidual  property^ ojf^  the^ inhabitants  of  the  town,  for  the  puriH)-i  of  dis- 
charging her  judgment  against  the  corporation.  Hence  we  must  look 
alone  to  the  common  law  for  the  rules  to  guide  us  in  our  decision. 

With  respect  to  private  corporations,  such  as  banks  or  insurance 
companies,  it  is  conceded,  that  no  individual  responsibility  attaches  to 

1  Statement  and  ar^unieiits  omitted.  —  Ed. 


654  HOKNER   V.   COFFEY. 

the  members  for  the  corporate  debts.  "  A  different  rule  prevails,'*  say 
some  of  the  authorities,  "  with  regard  to  the  inhabitants  of  an}-  district ; 
as  counties  or  towns  incorporated  bj-  statute,  which  come  under  the 
head  of  quasi  corporations  ;  for  against  them  no  private  action  will  lie, 
unless  given  by  statute  ;  and  if  a  power  to  sue  them  is  given  by  statute, 
each  inhabitant  is  liable  to  satisfy  the  judgment."  Angell  &  Ames  on 
Corp.  498,  499.  The  same  rule  is  more  broadly  stated  by  the  supreme 
court  of  Connecticut,  in  the  case  of  Beardslet/  v.  Smith,  16  Conn.  R. 
368.  The  court  on  that  occasion  used  the  following  language:  "We 
know,  that  the  relation  in  w'hich  the  members  of  municipal  corporations 
in  this  State  have  been  supposed  to  stand  in  respect  to  the  corporation 
itself,  as  well  as  to  its  creditors,  has  elsewhere  been  considered  in  some 
respects  peculiar.  We  have  treated  t!iem,  for  some  purposes,  as  parties 
to  corporate  proceedings,  and  their  individuality  has  not  been  consid- 
ered as  merged  in  their  corporate  connection.  Though  corporators, 
they  have  been  holden  to  be  parties  to  suits  by  or  against  the  corpora- 
tion, and  individually  liable  for  its  debts."  "  Such  corporations  are  of 
a  public  and  political  character ;  tliey  exercise  a  portion  of  the  govern- 
ing power  of  the  State.  Statutes  impose  upon  them  important  public 
duties.  In  the  performance  of  these,  the}'  must  contract  debts  and 
liabilities,  which  can  only  be  discliarged  by  a  resort  to  individuals,  either 
by  taxation  or  execution.  Taxation  in  most  cases  can  only  be  the  result 
of  the  voluntary  action  of  the  corporation,  dependent  upon  the  contin- 
gent will  of  a  majority  of  the  corporators,  and  upon  their  tardy  and 
uncertain  action.  It  affords  no  security  to  creditors,  because  they  have 
no  power  over  it." 

The  same  doctrine,  in  language  equall}'  strong,  has  been,  in  repeated 
decisions,  announced  by  the  supreme  court  of  Massachusetts,  and  it  is, 
perhaps,  now  the  settled  law  of  all  the  New  England  States.''  In  view 
of  the  numerous  authorities,  emanating  from  judicial  tribunals  as  en- 
lightened as  those  of  the  New  England  States,  thus  settling  the  law,  we 
have  been  induced  to  give  the  question  involved  in  the  case  before  us 
a  much  more  thorough  examination  than  it  otherwise  would  have  re- 
ceived at  our  hands.  This  examination  has  only  served  to  strengthen 
the  opposition  which  we  from  the  first  conceived  against  the  rule,  as  well 
as  the  principles  upon  which  it  has  been  settled  by  the  authorities  cited. 
W^e  submit  with  all  proper  deference  and  respect,  that  neither  position 
assumed  b}'  the  court  in  the  case  of  Beardsley  v.  Smith  can  be  sus- 
tained b}'  any  principle  of  the  common  law,  in  reference  to  the  inhabi- 
tants of  the  town  of  Grand  Gulf.  These  positions  are,  first,  that  the 
inhabitants  of  the  town  are  parties  to  all  suits  by  or  against  the  corpora- 
tion ;  and,  secondly,  the  charter  authorizing  a  suit  against  the  corpora- 
tion, the  inhabilaiits  are  personally  liable  to  discharge  the  judgment 
when  obtained. 

^  The  constitutionality  of  a  statute  permitting  the  judgment-creditor  of  the  town 
to  levy  upon  the  individual  property  of  the  inhabitants,  was  affirmed  iu  Eames  v. 
b'aya^e,  77  Maine,  212.  —  Ed.  ,  ,r  ,    _,i  i  i 


HORNEIl   V.   COFFEY. 


655_ 


In  regard  to  the  first  position,  the  suit  was  in  this  instance  against 
the  corporation.  Tlie  record  shows  no  other  defendant.  Hence,  if  the 
inhabitants  were  parties  to  the  suit,  they  became  such  b\'  operation  of 
law.  Before  the  law  will  make,  or  even  presume  a  man  to  be  a  defend- 
ant to  a  suit  against  another,  he  must  be  shown  to  have  been  a  party  to 
the  cause  of  action  upon  which  it  is  founded.  Were  the  inhabitants  of 
the  town  of  Grand  Gulf  parties  to  the  cause  of  action  in  this  instance? 
and  if  so,  was  it  their  own  act,  or  that  of  the  corporation,  that  made 
them  such?  If  of  the  corporation,  had  it  power  to  perform  the  act? 
The  tenth  section  of  the  charter  already  noticed  furnishes  a  conclusive 
answer  to  these  several  inquiries.  It  prescribes  the  manner  in  which, 
and  the  extent  to  which  the  corporation  must  act  and  maj-  go  in  this 
respect.  The  statute  prescribing  the  mode  in  which  an  act  must  be 
performed,  is  a  negative  ui)on  all  other  modes  for  performing  it. 
Whence  it  is  manifest  that  the  inhabitants  of  the  town  were  not  parties 
to  the  cause  of  action.  Thej'  could  not,  therefore,  be  parties  to  the 
suit,  for  the  plain  reason  that  they  had  violated  no  legal  duty.  A  suit 
is  but  a  reraed}-  given  by  law  to  enable  a  part}-  who  has  been  injured  b.v 
the  act  or  violation  of  dut}-  by  another,  to  recover  damages  equal  to  the 
injury  or  loss  sustained.  If  the  duty  never  existed,  it  could  not  be  vio- 
lated ;  and  without  both  its  existence  and  violation,  there  was  no  ground 
for  a  suit  against  the  inhabitants  of  the  corporation. 

But  there  is  still  another  light  in  which  this  question  may  be  pre- 
sented. If  the  doctrine  be  true,  that  the  inhabitants  of  an  incorporated 
town  are  by  operation  of  law  parties  to  all  suits  bj'  or  against  such 
corporation,  then  it  follows,  that  however  just  his  claim  may  be,  an 
inhabitant  could  not,  under  any  circumstances,  either  maintain  a  suit  or 
enforce  a  judgment  against  the  corporation.  The  moment  he  appears 
as  a  plaintiff  on  the  record,  the  law  makes  him  a  defendant  jointl}'  with 
the  corporation  in  the  same  action.  And  if  he  should  be  so  fortunate 
as  to  escape  a  plea  in  abatement,  or  a  demurrer,  if  the  fact  appeared  of 
record,  and  obtain  his  judgment,  his  own  property  would  be  as  much 
liable  as  that  of  any  other  inhabitant,  to  satisfy  the  execution.  This 
shows  to  what  the  doctrine  must  lead,  and,  consequent!}',  its  utter 
absurdit}-. 

We  will  now  proceed  to  consider  the  second^ question  stated  in  AngelH 
and  Ames,  in  this  language,  to  wit:  "  If  a  power  to  sue  the  corpora- 
tion is  given  hy  statute,  each  inhabitant  is  liable  to  satisfy  the  judg- 
ment." This  doctrine,  in  certain  cases,  is  unquestionably  correct ;  but 
it  has  no  application  to  a  corporation  like  that  of  the  town  of  Grand  Gulf, 
or  the  city  of  Bridgeport,  spoken  of  in  Bearchley  v.  Smith.  The  rule  is 
this ;  that  whenever  either  the  common  law  or  a  statute  requires  the 
inhabitants  of  a  particular  district  of  country,  such  as  a  county  town 
or  hundred  in  England,  to  perform  certain  duties,  and  they  fail  in  this 
respect,  in  consequence  of  which  a  statute  authorizes  a  suit  by  the  party 
injured  against  the  inhabitants,  then  the  judgment  in  such  case  may  be 
wholly  satisfied  out  of  the  property  of  any  one  of  said  inhabitants.    This 


(LvA>v.^-^ 


4-A- 


W^. 


^. 


e 


65G  HORNEE   V.   COFFEY. 

is  all  according  to  reason  and  the  principles  of  the  common  law.  The 
duty  required  was,  in  the  first  instance,  joint  and  several.  Every  in- 
habitant was  bound  to  aid  in  its  performance.  All  were  implicated  in 
its  violation,  which  occasioned  the  suit.  The  judgment,  in  being  also 
joint  and  several,  only  partook  of  the  nature  of  the  cause  of  action  upon 
which  it  was  founded.  This  was  the  operation  of  judgments  recovered 
under  the  statute  of  Winton,  till  its  amendment  by  the  act  of  43d  Eliza- 
beth, which  required  such  judgments  to  be  satisfied  by  a  tax  levied 
equally  upon  the  inhabitants  of  the  hundred. 

Here,  as  we  humbly  conceive,  lies  the  error  into  which  these  learned 
tribunals  have  fallen,  in  not  properly  discriminating  between  a  duty,  in 
the  performance  of  which  the  law  required  every  man  in  the  particular 
district  to  aid,  and  for  a  breach  of  which  all  were  liable,  and  a  mere 
power  delegated  to  a  corporation  for  certain  specified  purposes. 

The  charter,  in  this  instance,  only  requires  the  inhabitants  of  the  town 
to  perform  such  obligations  as  the  corporate  authorities  may  legally  im- 
pose upon  them.  The  only  obligation  which  could  be  thus  imposed,  is 
the  tax  provided  for  in  the  tenth  section.  AJailure  to  impose  this  tax,  . 
or  a  failure  to  pay  it  by  the  inhabitants,  does  not  make  them  liable  to  a 
judgment  against  the  corporation,  for  the  plain  reason  tiiat  it  consti- 
tuted no  cause  of  action  in  the  first  instance.  A  judgment  is  only  the 
means  provided  by.  law  to  enable  the  creditor  to  get  that  to  which  he 
was  entitled  before  judgment.  A  creditor  could  not  maintain  a  suit 
against  any  or  all  of  the  inhabitants,  merely  because  they  vs^ere  liable  to 
pay  a  certain  tax,  and  had  failed  to  pay  it.  Upon  what  principle,  then, 
can  he  resort  to  their  property,  for  the  purpose  of  discharging  a  judgment 
against  the  corporation,  to  which  the}^  are  not  parties,  and  against  whom 
a  recovery  could  not  have  been  had,  even  if  they  had  been  parties? 

But  it  is  said,  tliat  the  corporation  exercised  a  portion  of  the  govern- 
ing power  of  the  State,  and,  therefore,  could  exercise  its  discretion  in 
creating  liabilities  against  the  inhabitants  of  the  town.  It  is  true,  that 
the  corporation  is  invested  with  a  subordinate  political  power,  but  it  is 
only  such  as  is  expressly  granted  by  the  charter. 

To  this  extent  the  inhabitants  of  the  town  only  agreed  to  submit  to 

the  jurisdiction  of  the  corporation,  and  the  additional  burdens  which  it 

v\4i    ^       might  impose.     Thus  acting,  it  is  the  creature  of  law,  and  can  never 

oppress  those  under  its  jurisdiction.     Without  this  restraint  its  power 

is  arbitrary-  and  despotic,  and  may  be  used  by  the  corporate  authorities 

n    ^  1^,  foi'  their  own  selfish  purposes. 

*"  The  whole  case  must  at  last  turn  upon  the  question,  whether  the  cor- 

poration in  its  action  must  be  confined  strictly  to  the  grants  contained 
in  the  charter,  or  whether  it  may  exercise  an  unlimited  authority  over 
the  inhabitants  of  the  town.  If  we  adhere  to  the  first  position,  the  case 
for  the  appellant  cannot  even  be  made  plausible  under  the  charter.  The 
corporation  possessed  no  authority  to  make  the  people  of  the  town  par- 
ties to  the  cause  of  action,  or  to  the  suit,  or  to  make  their  property 
liable  to  the  judgment,  except  in  the  shape  of  a  tax. 


SUTERVISORS   OF   ROCK    ISLAND   V.   U.    S.    STATE   BANK.  657 

It  makes  no  difference,  that  the  appellee  is  one  of  the  selectmen.  He 
is  only  one  of  seven,  and  could  not  alone  either  levy  or  enforce  a  tax, 
under  the  charter.  If  he  has  failed  to  perform  his  duty  as  a  corpora-\  V^^^,.^).^ 
tor,  the  law  gives  a  remedy  against  hiin  as  well  as  the  others  by  ma7i-  >  ' 
damns,  to  compel  tliem  to  lev}'  the  tax  named.  He  can  only  be  known 
in  the  present  controversy  as  an  individual,  and  his  rights  as  such 
determined. 

There  is  no  judgment  in  the  record  from  which  an  appeal  could  be 
prosecuted.     The  case  will,  therefore,  be  dismissed. 


^A^ 


SUPERVISORS   OF   ROCK  ISLAND   v.   U.    S.   ex  rel.   STATE 

BANK. 

1866.     4  Wallace  (U.  S.),  435.1 

Error  to  U.  S.  Circuit  Court  for  Northern  District  of  Illinois. 

A  statute  of  Illinois,  of  February  16,  1863,  enacts  as  follows  : 

"  The  board  of  supervisors  under  township  organization,  in  such  coun- 
ties as  may  be  owing  debts  which  their  current  i-evenue,  under  existing 
laws,  is  not  sufficient  to  pa}',  may,  if  deemed  advisable,  levy  a  special  tax, 
not  to  exceed  in  any  one  year  one  per  cent,  upon  the  taxable  property 
of  any  such  count}-,  to  be  assessed  and  collected  in  the  same  manner 
and  at  the  same  time  and  rate  of  compensation  as  other  county  taxes, 
and  when  collected  to  be  kept  as  a  separate  fund,  in  the  county  treas- 
ury, and  to  be  expended  under  the  direction  of  the  said  county  court  or 
board  of  supervisors,  as  the  case  may  be,  in  liquidation  of  such  in- 
debtedness." 

At  March  Term,  1863,  the  relators  recovered  judgment  against  the 
County  of  Rock  Island  upon  certain  overdue  coupons.  Nothing  was 
paid  upon  the  judgment,  and  there  was  no  money  in  the  county  treasury 
which  could  be  so  applied.  -—  " 

The  relator  subsequently  requested  the  supervisors  to  collect  the 
requisite  amount  by  taxation,  and  to  give  him  an  order  on  the  county 
treasury  for  payment.     They  declined  to  do  either. 

He  then  applied  to  the  court  below  for  a  mandamus,  compelling  the 
supervisors,  at  their  next  regular  meeting,  to  levy  a  tax  of  sufficient 
amount  to  be  applied  to  pay  the  judgment,  interest,  and  costs,  and 
■when  collected  to  apply  it  accordingly.  An  alternative  writ  was 
issued. 

The  supervisors  made  a  return,  averring,  inter  alia,  that  they  had 
levied  and  collected  the  regular  county  taxes,  and  that  the  same  had 
all  been  needed  and  used  for  the  ordinary  current  expenses  of  the 
county. 

^  Statement  abridged.     Arguments  omitted.  —  Ed. 


658  SUPEEVISORS    OF   KOCK    ISLAND   V.   U.    S.    STATE    BANK. 

The  court  below  disallowed  the  return,  and  ordered  Uiat  a  geremp- 
tory  writ  should  issue,  commanding  the  respondents,  at  their  next  mect- 
ino  for  levying  taxes,  to  lev}'  a  tax  of  not  more  than  one  hundred  cents 
on  each  one  hundred  dollars'  worth  of  taxable  property  in  the  count}-, 
but  of  sufficient  amount  fully  to  pay  the  judgment,  interest,  and  costs  ; 
and  that  they  set  the  same  apart  as  a  special  fund  for  that  purpose  ; 
and  that  they  pay  it  over  without  unnecessary  delay  to  the  relator. 

Cook,  for  the  plaintiffs  in  error. 

James  Grant,  contra. 

8\VAYNK,  J.  [After  overruling  other  objections,  and  after  quoting 
the  statute  of  Feb.  16,  1863.]  The  counsel  for  the  respondent  insists, 
with  zeal  and  ability,  that  the  authorit}*  thus  given  involves  no  duty  ; 
that  it  depends  for  its  exercise  wholly  upon  the  judgment  of  the  super- 
visors, and  that  judicial  action  cannot  control  the  discretion  with  which 
the  statute  has  clothed  them.  We  cannot  concur  in  this  view  of  the 
subject.  Great  stress  is  laid  b}'  the  learned  counsel  upon  the  language, 
"  may,  if  deemed  advisable"  which  accompanies  the  grant  of  power, 
and,  as  he  contends,  qualifies  it  to  the  extent  assumed  in  his  argument. 

In  The  King  v.  The  Inhabitants  of  Derhy,^  there  was  an  indict- 
ment against  "divers  inhabitants"  for  refusing  to  meet  and  make  a 
rate  to  pa}'  "  the  constables'  tax."  The  defendants  moved  to  quash 
the  indictment,  "  because  they  are  not  compellable,  but  the  statute 
only  sa^'s  that  they  may,  so  that  they  have  their  election,  and  no  coer- 
cion shall  be."  The  court  held  that  "  mai/^^in  the  case  of  a  public 
officer,  is  tantamount  to  shall,  and  if  he  does  not  do  it, Tie  shall  be  pun- 
ished upon  an  information,  and  though  he  may  be  commanded  by  a 
wrlt^tliTB  is "bnt  an  aggravation  of  his  contempt." 

In  The  King  and  Queen  v.  Barlow,^  there  was  an  indictment  upon 
the  same  statute,  and  the  same  objection  was  taken.  The  court  said  : 
"  When  a  statute  directs  the  doing  of  a  thing  for  the  sake  of  justice  or 
the  public  good,  the  word  may  is  the  same  as  the  word  sJiall :  thus,  23 
Hen.  VI,  says  the  sheriff  m,ay  take  bail.  This  is  construed  he  shall, 
for  he  is  compellable  to  do  so." 

These  are  the  earliest  and  the  leading  cases  upon  the  subject.  They 
have  been  followed  in  numerous  English  and  American  adjudications. 
The  rule  they  lay  down  is  the  settled  law  of  both  countries. 

In  The  Mayor  of  the  City  of  JVeic  York  ^  and  in  3fason  v.  Fearson^ 
the  words  "  it  shall  be  lawful"  were  held  also  to  be  mandatory.^ 

The  conclusion  to  be  deduced  from  the  authorities  is,  that  where 
power  is  given  to  public  officers,  in  the  language  of  the  act  before  us^ 

1  Skiuner,  370.  2  2  Salkeld,  609.  ^  3  jiiu^  014,  4  9  Howard,  248. 

^  See  The  Attorney-General  v.  Locke,  3  Atkyns,  164;  Blackwell's  case,  1  Vernon, 
152;  Dwarris  on  Stat.  712;  Malcom  v.  Rogers,  5  Cowen,  188;  Newhurg  Turnpike 
Co.  fc\  Miller,  5  Johnson's  Chancery,  113;  Justices  of  Clark  County  Court  v.  The  P.  & 
W.  &  K.  R.  T.  Co.,  11  B.  Monroe,  143;  Minner  et  al.  v.  The  Merchants'  Bank,  1 
Peters,  64 ;  Com.  v.  Johnson,  2  Binney,  275 ;  Virginia  v.  The  Justices,  2  Virginia 
Cases,  9;  Ohio  ex  rel.  v.  The  Governor,  5  Ohio  State,  53;  jCo^  f.  The  City  CouDcil  of 
Lyons,  17  Iowa,  I. 


VON   HOFFMAN   V.    CITY   OF   QUINCY. 


G59 


or  in  equivalent  language  —  whenever  the  public  interest  or  individual 
rights  call  for  its  exercise  —  the  language  used,  though  permissive  in^ 
form,  is  hi  fact  peremptory,  ^yhat  they  are  empowered  to  do  for  a" 
fliird  person  the  law  requires  shall  be  done.  The  power  is  given,  not 
for  their  benefit,  but  for  his.  It  is  placed  with  the  depositary  to  meet 
the  demands  of  right,  and  to  prevent  a  failure  of  justice.  It  is  given 
as  a  remedy  to  those  entitled  to  invoke  its  aid,  and  who  would  other- 
wise be  remediless. 

In  all  such  eases  it  is  held  that  the  intent  of  the  legislature,  which  is 
the  test,  was  not  to  devolve  a  mere  discretion,  but  to  impose  "  a  posi- 
tive and  absolute  duty." 

The  line  which  separates  this  class  of  cases  from  those  which  involve 
the  exercise  of  a  discretion,  judicial  in  its  nature,  which  courts  cannot 
control,  is  too  obvious  to  require  remark.  This  case  clearly  does  not 
fall  within  the  latter  categor}'.^ 

The  Circuit  Court  properly  awarded  a  peremptory  writ  of  mandamus. 
We  find  no  error  in  the  record.     The  judgment  below  is 

H  Affirmed, 

-^^       — W<?-tL 

V^*^  VON  HOFFMAN  v.  CITY  OF  QUINCY.     \j.jKj^^   t)X^<xXo    ^ 


.-xX' 


VON  HOFFMAN  v.  CITY  OF  QUINCY. 

1866.     4  Wallace,  535.2 

Error  to  U.  S.  Circuit  Court  for  Southern  District  of  Illinois. 

Petition  for  mandamus. 

The  relator  was  the  owner  of  overdue  coupons,  which,  when  issued, 
were  attached  to  bonds  issued  by  the  citj-  in  payment  for  railroad 
stock,  subscribed  for  by  the  cit}' under  certain  statutes,  passed  in  l^^iX^ 
1853,  and  185L 

Hy  the  provisions  of  these  several  acts  the  city  was  authorized  to 
collect  a  special  annual  tax  upon  the  property.,  real  and  personal^ 
therein.,  sufficient  to  pay  the  annual  interest  upon  any  bonds  there- 
after issued  by  the  city  for  railroad  purposes,  pursuant  to  law.  It 
was  required  that  the  tax,  when  collected,  should  be  set  aside,  and 
held  separate  from  the  other  portions  of  the  city  revenue,  as  a  fund 
specially  pledged  for  the  payment  of  the  annual  interest  upon  the 
bonds  aforesaid.  It  was  to  be  applied  to  this  purpose,  from  time 
to  time,  as  the  interest  should  become  due,  "  and  to  no  otherjmrpose 
whatsoever." 

The  city  failed  to  pay  the  coupons  held  by  the  relator  for  a  long 
time  after  they  became  due,  and  refused  to  levy  the  tax  necessary  for 


C/w^'^-^x^"*"*^ 


/>«» 


O^tJI 


y^4-^ 


1  The  People  v.  Sup.  Court,  5  Wendell,  125;  The  Teople 
Wendell,  289;  The  People  v.  Vermilyea,  7  Cowen,  393;  Hull 
John.  260. 

2  Statement  abridged. 


V.  Sup.   Court,  10 
V.   Supervisors,  19 


Arguments  omitted.      Only  part  of  the  opinion  is  gireo. 


3Lir\^ 


660 


VON   HOFFMAN   V.    CITY   OF  QUINCY. 


V^ 


5^ 


vWv 


that  purpose.  The  relator  sued  the  city  upon  them  in  the  court  below 
and  at  the  June  Term,  1863,  recovered  a  judgment  for  $22,206.69 
and  costs.  An  execution  was  issued  and  returned  unsatisfied.  The 
judgment  was  unpaid.  The  city  still  neglected  and  refused  to  levy 
the  requisite  tax.  He  therefore  prayed  that  a  writ  of  matidamus  be 
issued,  commanding  the  city  and  its  proper  officers  to  pay  over  to  him 
any  money  in  their  hands  otherwise  unappropriated,  not  exceeding  tGe 
amount  of  the  judgment,  interest,  and  costs  ;•  and,  .for  want  of  such- 
funds,  commanding  them  to  levy  the  special  tax  as  required  by  the  acts 
of  the  legisTature  before  referred  to,  sufficient  to  satisfy  the  judgment, 
interest,  and  costs,  and  to  pa}'  over  to  him  the  proceeds. 

The  city  filed  an  answer  relying  on  the  actjof  Feb.  14,  1863,  which 
contains  the  following  provisions  : 

"  Section  4.  Tlie  city  council  of  said  citv  shall  have  power  to  levy 
and  collect  annuallj-  taxes  on  real  and  personal  property  within  the 
limits  of  said  cit}'  as  follows  :  [After  providing  for  taxation  for  certain 
special  purposes;]  On  all  real  and  personal  property  within  the 
limits  of  said  city,  to  pay  the  debts  and  meet  the  general  expenses  of 
said  city,  iiot  exceeding  fifty  cents  on  each  one  hundred  dollars  per 
annum  on  the  annual  assessed  value  thereof.  -■—.•>-.     ^l_ 

~^^^ecIion  5.  All  laws  and  parts  of  laws,  other  than  the  provisions 
hereof,  touching  the  levy  or  collection  of  taxes  on  property  within  said 
city,  except  those  regulating  such  collection,  and  all  laws  conflicting 
herewith  are  herebj'  repealed ;     .     .     ." 

The  answer  averred  that  the  full  amount  of  the  tax  authorized 
by  this  act  had  been  assessed,  and  was  in  the  process  of  collection  ; 
that  the  power  of  the  city  in  this  respect  has  been  exhausted:  "and 
that  the  said  fifty  cents  on  the  one  hundred  dollars,  when  collected, 
will  not  be  sufficient  to  pay  the  current  expenses  of  the  city  for  the 
3'ear  1864,  and  the  debts  of  the  said  cit}-." 

The  relator  demurred  to  the  answer,  and  judgment  was  given  against 
him. 

McKinnon  and  Merrick,  for  plaintiff  in  error. 

Gushing  and  Ewing,  Jr.,  coritra. 

SwAYNE  J.     .     .     .     The  Constitution  of  the  United  States  declares 
(Art.  I.  s.  10),  that  "  po  State  shall   pass  ajiy  bill  of  attainder,  ex 
post  facto  law,  or  law  impairing  the  obligation  of  contracts^' 


It  is  also  settled  that  the  laws  which  subsist  at  the  time  and  place  of 
tlie  making  of  a  contract,  and  where  it  is  to"  be  performed,  enter  into'* 
nnd  form  :i  part  of  it,  as  if  they  were  expressly  referred  to  or  incorpo-, 
rated  in  its  terms.  This  principle  embraces  alike  those  whicli  affect  its 
validity,  construction,  discharge,  and  enforcement.  Illustrations  of 
this  proposition  are  found,  in  the  obligation  of  the  debtor  to  pay 
interest  after  the  maturit}'  of  the  debt,  where  the  contract  is  silent ;  in 
the  liability'  of  the  drawer  of  a  protested  bill  to  pay  exchange  and 
damages,  and  in  the  right  of  the  drawer  and  indorser  to  require  proof 


^'n  <=^  ^-)5 


^-^flv^   Jlit^  'c-jbL^^v-^^  J?^_ 


(t£C 


/t2J^t> 


V.j3 


VON   HOFFMAN   V.   CITY   OF   QUINGY. 


661 


of  demand  and  notice.     These  are  as  much  incidents  and  conditions  of 
the  contract  as  if  they  rested  upon  the  basis  of  a  distinct  agreement.^ 

•  •*••••• 

Nothing  can  be  more  material  to  the  obligation  than  the  means  of 
enforcement.  Without  the  remed_y  the  contract  may,  indeed,  in  the 
sense  of  the  law,  be  said  not  to  exist,  and  its  obligation  to  fall  within 
the  class  of  those  moral  and  social  duties  which  depend  for  their  fulfil- 
ment wholly  upon  the  will  of  the  individual.  The  ideas  of  validity  and 
remedy  are  inseparable,  and  both  are  parts  of  the  obligation,  which  is 
guaranteed  hy  the  Constitution  against  invasion. 

It  is  competent  for  the  States  to  change  the  form  of  the  remedy,  or 
to  modify  it  otherwise,  as  they  may  see  fit,  provided  no  substantial 
right  secured  b}*  the  contract  is  therebj-  impaired.  No  attempt  has 
been  made  to  fix  definitely  the  line  between  alterations  of  the  remedy, 
which  are  to  be  deemed  legitimate,  and  those  which,  under  the  form  of 
modifjing  the  remedy,  impair  substantial  rights.  Everj'  case  must  be 
determined  upon  its  own  circumstances.  Whenever  the  result  last 
mentioned  is  produced  the  act  is  within  the  prohibition  of  the  Consti- 
tution, and  to  that  extent  void.^ 

If  these  doctrines  were  res  integroe  the  consistency'  and  soundness  of 
the  reasoning  which  maintains  a  distinction  between  the  contract  and 
the  remed}'  —  or,  to  speak  more  accuratel}',  between  the  remedy  and 
the  other  parts  of  the  contract  —  might  perhaps  well  be  doubted.^  But 
the}'  rest  in  this  court  upon  a  foundation  of  authovit}'  too  firm  to  be 
shaken  ;  and  the}-  are  supported  by  such  an  array  of  judicial  names 
that  it  is  hard  for  the  mind  not  to  feel  constrained  to  beUeve  they  are 
correct.  The  doctrine  upon  the  subject  established  by  the  latest  ad- 
judications of  this  court  render  the  distinction  one  rather  of  form  than 
substance. 

When  the  bonds  in  question  were  issued  there  were  laws  in  force 
which  authorized  and  required  the  collection  of  taxes  sufficient  in 
amount  to  meet  the  interest,  as  it  accrued  from  time  to  time,  upon  the 
entire  debt.  But  for  the  act  of  the  14th  of  February,  1863,  there 
would  be  no  difficulty  in  enforcing  them.  The  amount  permitted  to  be 
collected  by  that  act  will  be  insufficient ;  and  it  is  not  certain  that  any- 
thing will  be  yielded  applicable  to  that  object.  To  the  extent  of  the 
deficiency  the  obligation  of  the  contract  will  be  impaired,  and  if  there 
be  nothing  applicable,  it  may  be  regarded  as  annulled.  A  right  with- 
out a  remed\'  is  as  if  it  were  not.  For  ever}'  beneficial  purpose  it  may 
be  said  not  to  exist. 


1  Green  v.  Biddle,  8  Wheaton,  92;  Bronson  v.  Kinzie,  1  Howard,  319;  McCracken 
V.  Hayward,  2  Id.  612;  People  v.  Bond,  10  California,  570;  Ogdeu  v.  Saunders,  12 
Wheaton,  231. 

2  Bronson  v.  Kinzie,  1  Howard,  311 ;  McCracken  v.  Hayward,  2  Id.  608. 

8  1  Kent's  Commentaries,  456 ;  Sedgwick  on  Stat,  and  Cons.  Law,  652 ;  Mr 
Justice  Washington's  dissenting  opinion  in  Mason  v.  Haue,  12  Wheaton.  379. 


A-, 


A  i>^ 


>;-..>. 


662 


MAECHAND   V.    CITY   OF   NEW    ORLEANS. 


\ 


\ 


ercising 


It  is  well  settled  that  a  State  ma}'  disable  itself  by  contract  from  ex« 
its  taxing  power  in   particular  casgaSI     It  is   equally  clear 

Ithat  whore  a  State  has  autliorized  a  munici[)al  corporation  to  contract 
and  tS'^exercise  the  power  of  local  taxation  to  the  extent  necessarj'  to 
ineet  its  engagements,  the  power  thus  given  cannot  be  withdrawn  until 
the  contract  is  satisfied.  The  State  and  the  corporation,  in  such  cases, 
are  equally  bound.  The  power  given  becomes  a  trust  which  the  donor 
cannot  annul,  and  which  the  donee  is  bound  to  execute  ;  and  neither 
the  State  nor  the  corporation  can  any  more  impair  the  obligation  of 
the  contract  in  this  way  than  in  any  other.  ^ 

The  laws  requiring  taxes  to  the  requisite  amount  to  be  collected,  in 
force  when  the  bonds  were  issued,  are  still  in  force  for  all  the  purposes 
of  this  case.  The  act  of  1863  is,  so  far  as  it  aifects  these  bonds,  a 
nullity.  It  is  the  dut}'  of  the  cltj'  to  impose  and  collect  the  taxes  in 
all  respects  as  if  ttrat  acTTtiiT^TCr^been  passed.  A  different  result 
would  leave  nothing  of  the  contract,  but  an  abstract  right — of  no 
practical  value  —  and  render  the  protection  of  the  Constitution  a 
shadow  and  a  delusion. 

The  Circuit  Court  erred  in  overruling  the  application  for  a  manda- 
mus. The  judgment  of  that  court  is  reversed,  and  the  cause  will  be 
remanded,  with  instructions  to  proceed 

Jti  coiiformity  with  this  opinion. 


..a:x.-^X.    CU  ^^^^Uw-j?  ^  ^bzAri  JCX^ 


nO-i.  y^JJU  yu 


A  '   STATE  EX  REL.  MARCHAND 


V. 


^  CITY  OF  NEW  ORLEANS. 

U/C»  I  ^  ^'^"'-^X  T^^'t^'^'**^85-   ,37  Louisiana  Annual,  13.3 

i-'^SV*'^"^  Appeal  from  the  Civil  District  Court  for  the  Parish  of  Orleans- 
Mo7iroe,  J. 

Slanc  and  Butler.,  for  the  relators  and  appellees. 

C.  F.  Buck,  City  Attorney,  contra. 

Fenner,  J.  In  1872,  the  Legislature  of  the  State  passed  Act  No. 
60  of  that  year,  by  which  it  established  the  Luzenberg  Hospital  in  this 
eit}'  as  the  exclusive  hospital  for  small-pox  and  further  provided  that 
"  all  indigent  cases  of  small-pox,  or  other  diseases  reported  contagious, 
in  want  of  or  making  application  for  hospital  aid  or  care,  shall  be  sent 
to  the  hospital  designated  in  this  act,  at  the  expense  of  the  city  of  New 
Orleans,  as  usual  and  at  the  usual  ^^er  diem." 

Acting  under  this  direction,  the  city  entered  into  a  contract  with  Dr. 

J  T^«r Anfoux  then  in  charge  of  said  hospital  by  which  he  was  to  receive  and 

treat  such  patients  at  a  stipulated  compensation  of  thirtA'-five  dollars 


r%*^ 


1  New  Jersey  v.  Wilson,   7  Cranch,  166;  Dodge  v.  Woolsey,   18  Howard,  331; 
"    A  Piqna  Branch  v.  Knoop,  16  Id.  331. 

t*^  '  ^  People  V.  Bell,  10  California,  570;  Dominic  v.  Sayre,  3  Sandford,  bhb. 

'L,,^         ^^  •  Arguments  omitted.  —  Ed. 


^^9* 


H» 


^ 


( 


MARCHAND   V.   CITY   OF   NEW    ORLEANS.  683 

per  case.  During  the  3'ear  1873  he  received  and  treated  a  large  num- 
ber of  cases,  for  which  the  amount  due  b}'  the  city  under  the  contract 
was  S19,670. 

In  1878  suit  was  brought  and  judgment  recovered  against  the  city 
on  the  foregoing  cause  of  action  and  for  the  amount  above  stated,  with 
interest  and  costs. 

The  judgment  thus  rendered  was  duly  registered  July  5th,  1878,  pur- 
suant to  the  provisions  of  Act  No.  5,  of  1870.  This  registration  has 
produced  no  results  ;  the  judgment  has  not  been  paid  ;  and  the  evi- 
dence makes  it  manifest  tliat  under  tlie  city's  construction  of  its 
duties  under  the  Act  No.  5,  and  under  its  modes  of  execution  thereof, 
man3-  years  must  elapse  before  an}'  payment  will  be  made  upon  this 
judgment. 

The  reason  why  this  debt  remains,  and  promises  to  remain,  unpaid, 
is  that  the  city  construes  her  power  and  dut}'  of  taxation  to  be  gov- 
erned and  limited  by  the  provision  of  the  Constitution  of  1879  to  a  tax 
often  mills  on  the  dollar,  in  so  far  as  provision  for  such  judgments  is 
concerned,  and  that  the  requirements  for  her  alimony  leave,  out  of  the 
receipts  from  this  tax,  nothing  or  little  to  be  appropriated  to  the  satis- 
faction of  judgments. 

To  this  the  creditor  answers  that  he  is  a  creditor  b}-  contract ;  that, 
at  the  date  of  his  contract,  the  cit}'  possessed,  b}'  law,  a  power  of  tax- 
.■^.tion  for  "current  city  expenses  exclusive  of  interest  and  schools" 
only  limited  to  one  and  one-quarter  7:)er  cent.;  that  quoad  this  contract 
obligation  and  so  far  as  necessary  for  its  satisfaction,  this  power  of  tax- 
ation still  exists  unaffected  by  subsequent  legislative  or  constitutional 
provisions  ;  that,  under  the  Act  No.  5  of  1870,  it  is  the  duty  of  the  city 
authorities  to  provide  for  the  payment  of  his  registered  judgment  by 
setting  apart  in  the  annual  budget  a  sum  for  that  purpose,  and  that,  in 
order  to  execute  this  duty,  the  correlative  duty  is  imposed  of  exercis- 
ing the  power  of  taxation  vested  in  the  city  by  law  to  the  extent  neces- 
sary to  raise  the  means  to  make  such  provision. 

In  pursuance  of  these  views,  the  present  suit  was  instituted  for  a 
mandamus  directing  the  city  authorities  to  execute  and  perform  the 
duties  imposed  by  the  Act  No.  o  of  1870;  and,  in  accordance  there- 
with, to  set  apart  in  the  next  annual  budget  sufficient  money  to  pay 
such  judgment ;  and  further  directing  them  to  provide  in  said  budget, 
by  taxation  for  current  city  expenses,  in  excess  of  the  amount  allowed 
by  law  for  the  alimony  of  the  city  but  not  in  exc^s  of  one  and  one- 
quRvter  per  cent.,  the  means  of  revenue  necessary  to  pa}'  relator's  said 
judgment,  and  so  to  do,  in  all  succeeding  annual  budgets,  until  the 
same  be  paid. 

From  a  judgment  making  the  mandamus  peremptory,  the  city  has 
appealed. 

We  lay  down  the  following  propositions  of  fact  and  law  viz.  : 

1st.    The  judgment  was  founded  on  a  contract  entered  into  in  1872. 

2d.    At  the  date  of  the  contract,  the  city  possessed  a  power  of  taxa- 


y 


564  MAKCHAXD    V.    CITY    OF   NEW    ORLEANS. 

tion  for  general  expenses  "  exclusive  of  interest  and  schools,"  of  twelve 
and  one-half  mills  7Per  annum.     See  Act  No.  73  of  1872,  Sec.  15. 

^d.  Under  the  consistent  jurisprudence  of  the  Supreme  Court  of  the 
United  States  and  of  this  Court,  the  power  of  taxation  existing  at  the 
date  of  the  contract  is  read  into  the  contract  and  continues  to  exist,  so 
far  as  necessary  for  the  enforcement  of  the  obligations  of  the  contract, 
irrespective  of  an}'  subsequent  legislation  or  constitutional  enactments 
restricting  the  power  of  taxation.  State  ex  rel.  Moore  vs.  Cit}-,  32 
Ann. ;  State  ex  rel.  Dillon  vs.  City,  34  Ann.  477  ;  State  ex  rel.  Carriere 
vs.  City,  36  Ann.  ;  VonHoffmanj::sJ^^  Wall.  535  ;  Wolff  vs. 

New  Orleans,  103  U.^ST^orTNdson  vs.  St.  Martin,  111  U.  S.  720. 

4th.  This  Court  has  long  since  held  that  the  prohibitions  against 
the  issuance  of  the  writ  of  mandamus  against  officers  of  the  city  of 
New  Orleans  contained  in  Act  No.  5  of  1870,  apply  only  to  the  cases 
therein  speciall}'  designated  and  that,  for  the  performance  of  the  duties 
imposed  b}-  that  act  itself,  the  writ  of  mandamus  was  a  proper  remedy. 
State  ex  rel.  Carondelet  vs.  New  Orleans,  30  Ann.  129. 

5th.  In  the  same  case  it  was  held  that,  under  Act  No.  5  of  1870,  it 
is  the  "  plain  dutj' "  of  the  city  authorities  "  to  provide  for  the  pa}-- 
ment  of  registered  judgments  in  the  only  mode  in  which  judgment 
creditors  of  the  city  are  permitted  to  collect  their  judgments.  This, 
requires  the  action  of  the  Ma3'or  and  Administrators,  in  their  aggre- 
gate capacity  as  a  municipal  government ;  the  adoption  of  the  annual 
budget ;  the  lev}'  of  the  necessary  taxes  ;  and  a  setting  apart  of  a 
sufficient  amount  to  paj"  tliis  and  other  registered  judgments.  *  * 
The  duty  of  the  city  to  make  this  provision  is  not  discretionar}'  as  to 
time  or  manner.  The  law  imperatively  requires  that  it  shall  be  in  the 
next  annual  budget,  and  b}'  setting  apart,  appropriating  a  sufficient 
amount  out  of  the  annual  revenues."  State  ex  rel.  Carondelet  vs.  New 
Orleans,  30  Ann.  129. 

This  c^iity.  we  have  held,  however,  is  subordinate  to  the  higher  and 
absolute  duty  of  first  providing,  out  of  the  revenues  applicable  to  tUat"'"" 
purpose,   for  the   necessar}-  alimou}' or  support  of  the  city.     State  ex 
rel.  Moore  vs.  City ;  Saloy  vs.  Cit}-. 

6th.  In  the  DeLeon  case  we  held  that  the  dnt}'  to  appropriate  and 
set  apart  money  in  the  annual  budget  for  particular  purposes  "  in- 
volved necessarily  the  duty  to  levy  such  tax  (within  the  power  of  tax- 
ation possessed,  at  the  time,  by  the  corporation)  as  will  render  possible 
the  performance  of  the  duty."  State  ex  rel.  DeLeon  vs.  City,  34  Ann., 
p.  477. 

7th.  The  relator  herein  claims  and  is  entitled  to  no  special  tax.  He 
is  siraph'  entitled  to  paymentout  of  th£.rev.enues"'ai'is'Tng  from  tb'e  col- 
lection  of  taxes  provided  for  the  general  expenses  of  the  city.  ITe 
simply  asks  that  the  power  of  taxation  conferred  by  law  for  that  pur- 
pose shall  be  exercised  to  the  extent  necess^j}'  to  furnish  the  means 
out  of  which  his  judgment  may  be  paid. 

So  far  as  relator's  contract  and  judgment  are  concerned,  we  have 


MARCHAND   V.   CITY    OF   NEW    ORLEANS.  065 

already  shown  that  the  cit}'  possesses  a  power  of  taxation  for  general 
purposes  of  twelve  and  one-half  mills.  She  has,  heretofore,  exercised, 
and  proposes  hereafter  to  exercise  this  power  only  to  the  extent  of  ten 
mills  on  the  dollar,  and,  as  the  revenues  arising  from  this  tax  are 
applicable  to,  and  required  for,  the  necessary  alimon}-  of  the  cit}',  tliey 
leave,  as  we  have  said,  little  or  nothing,  which  can  be  appropriated  for 
the  payment  of  registered  judgments. 

From  the  foregoing  statement,  it  appears  that,  to  the  extent  neces- 
sary  for  the  provision  for  payment  of  phiintiff's  judgment,  the  city  pos- 
sesses a  residuary  power  of  taxation  of  two  and  one-half  mills,  noiF 
exercised  and  which  she  refuses  to  exercise,  the  revenues  from  which 
"Would,  unrler  no  circumstances,  be  applicable  to  the  city's  alimony,  (jr, 
mdeed,  to  anj-  other  purpose  than  that  of  satisfying  relator's  judgmenj 
and  others  standing  in  like  case  with  it.  It  would  be,  indeed,  an 
anomah-,  if  the  city  could  escape  from  or  postpone  lier  clear  dut}',  to 
provide  for  the  satisfaction  of  such  judgments,  by  simpl}-  abstaining 
from  the  exercise  of  lawful  powers  of  taxation  to  an  extent  necessary 
to  provide  the  means  of  paying  them.  Such  an  anomaly  could  never 
be  sanctioned  b}-  any  court  of  justice,  since  it  would  render  the  pay- 
ment of  debts  no  longer  obligator}'  upon  municipal  corporations,  but 
uependent  purely  upon  their  will  and  caprice. 

From  the  foregoing  considerations  it  would  conclusiveh*  appear  that 
relators  are  entitled  to  the  relief  which  the}-  seek,  unless  there  is  some- 
thing in  the  nature  of  their  debt,  or  in  the  law  existing  at  the  date  of 
their  contract,  which  debars  it.  Legislation  subsequent  to  the  contract 
has,  and  can  have,  no.  effect jjjyiOTi_^h£  rights  and  obligations  jirj^siiig 
fronTthe  contract. 

The  learned  counsel  for  the  city  propounds  two  special  defenses 
based  upon  the  nature  of  plaintiff's  debt  and  the  law  in  existence  at 
the  date  of  the  contract. 

1st.  He  contends  that,  from  the  very  nature  and  constitution  of  mu- 
nicipal corporations,  they  are  incapable  of  creating  or  contracting  a 
debt  for  current  expenses,  in  excess  of  the  revenues  arising  from  taxa- 
tion, within  the  limitations  imposed  by  law,  for  tlie  year  in  which  the 
debt  was  created ;  and  that  such  debt,  whether  created  by  contract  or 
not,  can  only  demand  satisfaction  out  of  the  revenues  of  that  year. 

If  such  had  been  the  law  of  Louisiana,  as  applicable  to  the  city  of 
New  Orleans,  in  1873,  it  is  passing  strange  that,  in  1874,  it  should 
have  been  deemed  necessary  to  pass  a  constitutional  amendment  estab- 
lishing the  very  principles  which,  it  is  contended,  already  existed  and 
were  inherent  in  the  ver}'  nature  of  the  corporation. 

We  have  rigidly  enforced  the  constitutional  amendment  of  1874,  as 
applicable  to  debts  created  after  its  passage.  Taxpayers  vs.  New  Or- 
leans, 33  Ann.  568. 

But  when  we  are  asked  to  recognize  the  principles  established  by 
that  amendment  as  existing  independent  of  it  and  prior  to  its  passage, 
and  as  applicable  to  debts  contracted  prior  thereto,  we  must  pause. 


C66  MARCHAND    V.   CITY    OF   NEW   ORLEANS. 

The  proposition  is  supported  by  no  authority'  and  b}'  no  well  founded 
reason.  It  is  contradicted  by  the  entire  financial  administration  of  the 
cit}'  prior  to  1874,  by  the  uniform  current  of  judicial  interpretation 
which  has  constantly  rendered  and  enforced  judgments  upon  such  obli- 
gations without  restriction  to  the  revenues  of  particular  years,  and  by 
the  terms  and  spirit  of  the  Act  No.  5  of  1870  itself. 

For  what  would  be  the  sense  of  requiring  the  city  authorities  to  pro- 
vide in  coming  budgets  for  registered  judgments,  without  distinction, 
if  such  judgments  could  onl}'  seek  satisfaction  out  of  the  revenues  of 
some  antecedent  year  in  which  the  debts  were  contracted?  We  dis- 
miss the  proposition  as  utterly'  untenable. 

Nor  is  there  anything  in  the  nature  of  tlie  debt  which  prevents  tliis 
contract  from  being  protected  from  impairment  under  the  Constitution 
of  the  United  States.  The  protection  afforded  by  that  instrument  is 
not  restricted  to  bonds  or  any  particular  forms  of  contract.  It  covers 
all  contracts.  Every  lawful  contract  of  a  municipal  corporation  is  en- 
titled to  satisfaction  by  the  exercise  of  the  power  of  taxation  possessed 
by  the  corporation  at  its  date,  to  the  extent  necessar}',  and  to  invoke 
the  continued  and  repeated  exercise  of  that  power  until  the  debt  is 
satisfied. 

Such  is  the  clear  and  unequivocal  doctrine  announ(!ed  by  the  Supreme 
Court  of  the  United  States  uniform!}'  and  specially  in  the  very  recent 
case  of  Nelson  vs.  St.  Martin,  111  U.  S.  716. 

We  are  not  called  upon  to  consider  the  rights  of  other  judgment 
creditors  whose  judgments  rank  that  of  relators  in  order  of  registry. 
The  record  does  not  advise  us  whether  their  judgments  are  based  on 
contracts  or  whether  they  rest  upon  causes  of  action  arising  prior  to 
the  constitutional  amendment  of  1874.  It  may  be  that  none  of  them 
can  compete  with  relators  in  the  relief  souglit.  But,  at  all  events_^the 
unexhausted  power  of  taxation  is  ample  to  satisfy,  all ;  and  if  the}'  are 
eTTtitled  to  like  rights  with  relators  and  liave  neglected  to  exercise 
them,  there  is  no  reason  wh}'  relators  should  suffer. 

Let  it  be  well  understood  that  the  duty  to  levy  an  extra  tax  is  not 
obligator}'  under  this  decree.  The  citv  may  satisfy  the  debt  out  of  its 
revenues  under  the  existing  rate  of  taxation.  But  the  insufficiency  of 
such  revenues  will  be  no  excuse  for  not  satisfying  the  judgment  and. 
If  necessai'v,  and  onli/  if  necessai'.v,  must  provision  be  made  by  a  tax 
for  general  expenses  above  ten  mills  and  within  twelve  and  one-half 
mills. 
'"Judgment  affirmed.  \     .^     \CxJc  ., 

Rehearing  refused.  v 

Bermudez,  C.  J.,  and  PocHi;,  J.,  take  no  part  in  this  opinion  and 
decree. 


REES   V.   CITY   OF   WATEIiTOWN.  667 

REES   V.   CITY  OF   WATERTO'VVN-.'^^^^-A-«J.  &'*^y>-«-.<i^  ^ 

1873.     19  Wallace  {U.  S.),    107.1  /i_-«.— v.^__i»Jb   c,tJ& 

Appeal  from  the  Circuit  Court  for  the  Western  District  of  "Wiscon-  Q-  ^  "^ 

sin  ;  the  case  being  thus  :  ^^y^j-^A. 

Rees,  a  citizen  of  Illinois,  being  owner  of  certain  bonds  issued  under    VJLajv*   < 
authority  of  an  act  of  the  legislature  of  the  State  of  Wisconsin,  by  the  ^  ^^  p  Q 

city  of  Watertown,  in  that  State,  to  the  Watertown  and  Madison  Rail-  >*|* 

road  Company,  and  by  the  company  sold  for  its  benefit,  brought  suit  '>-Ja.P^ 

in  the  Circuit  Court  of  the  United  States  for  the  District  of  Wiscon-  ^CA.a,^,^ 

sin,  against  the  city,  and,  in  1867,  recovered  two  judgments  for  about  j^-^  -U  S 

$10,000.  -    n  •v.-J 


In  the  summer  of  1868  he  issued  executions  upon  the  two  judgments    ^     . 
thus  obtained,  which  were  returned  wholly  unsatisfied.  Ci^NMh*^ 


In  November  of  the  same  year  he  procured  from  the  United  States 
Circuit  Court  a  peremptory  writ  of  mandamus,  directing  the  city  of 

Watertown  to  levy  and  collect  a  tax  upon  the  taxable  property  of  the  •>  |V.-<rv 

city,  to  pay  the  said  judgments ;  but  before  the  writ  could  be  served,  /^^  Oj^ 

a  majority  of  the  members  of  the  city  council   resigned  their  offices.  /JJIjLJli 

This    fact  was  returned  by  the  marshal,  and  proceedings  upon   the  r^'"'^*''"'^ 

mandamus  thereupon  ceased.  \5^^^  *"*^ 

In  May,  1869,  another  board  of  aldermen  having  been  elected,  Rees  /Wji^,.^ 


s 


procured  another  writ  of  mandamus  to  be  issued,  which  writ  was  served 
on  all  of  the  aldermen  except  one  Holger,  who  was  sick  at  the  time  of 
the  service  upon  the  others.     No  steps  were  taken  to  comply  with  the     r'^^^^'^ 
requisition  of  the  writ.     An  order  to  show  cause  why  the  aldermen  C^-^-^-^/d-w 
should  not  be  punished  for  contempt,  in  not  complying  with  its  re 
quirements,  was  obtained,  and  before  its  return  day  six  of  the  alder- 
men  resigned   their   ofinces,  leaving   in   office   but   one  more  than  a 


iS\cLk 


_ ^ ^       _ __     ^^^    ^_    __^    ^      iH\.<TN-*- 

quorum,  of  whom  the  said  Holger,  upon  whom  the  writ  had  not  been  >*^  JtL 
served,  was  one.  Various  proceedings  were  had  and  various  excuses  (1  i^^^ 
made,  the  whole  resulting  in  an  order  that  the  aldermen  should  at  once 
levy  and  collect  the  tax ;  but  before  the  order  could  be  served  on 
Holger,  he  resigned  his  oflflce,  and  again  the  board  was  left  without  a 
quorum.  Nothing  was  accomplished  by  their  effort  in  aid  of  the  plain- 
tiff, but  fines  were  imposed  upon  the  recusant  aldermen,  which  were 
ordered  to  be  applied  in  discharge  of  the  costs  of  the  proceedings. 

In  October,  1870,  the  plaintiff  obtained  a  third  writ  of  mandamus, 
which  resulted  as  the  former  ones  had  done,  and  by  the  same  means, 
on  the  part  of  the  officers  of  the  cit}'.  A  special  election  was  ordered 
to  be  held  to  fill  the  vacancies  of  the  aldermen  so  resigning,  but  no 
votes  were  cast,  except  three  in  one  ward,  and  the  person  for  whom 
they  were  cast  refused  to  qaalif^y.  The  general  truth  of  these  facts 
was  not  denied.     No  part  of  the  debt  was  ever  paid. 

^  Statement  abridged.    Argument  and  part  of  opinion  omitted.  — Ed. 


668 


BEES   V.    CITY   OF   WATERTOWN. 


In  this  state  of  things,  the  district  of  Wisconsin  having  been  divided 
Ittto  an  eastern  and  a  western  district,  and  the  cit}'  of  Watertown  being 
in  the  latter,  Rees  brought  suit  in  the  latter  district  on  his  judgments 
obtained  in  the  general  district  before  the  division,  and  got  a  new 
judgment  upon  them  for  $11,066. 

He  now  filed  a  biU  in  the  said  western  district,  setting  forth  the 
above  facts,  the  general  truth  of  which  was  not  denied  ;  that  the  debt 
due  to  him  had  never  been  paid,  and  that,  with  an  accumulation  of 
fourteen  3'ears'  interest,  the  same  remained  unpaid,  and  that  all  his 
efforts  to  obtain  satisfaction  of  his  judgments  had  failed.  All  this  was 
equall}'  undenied. 

The  bill  set  forth  also  certain  acts  of  the  legislature  of  Wisconsin, 
which,  it  was  alleged,  were  intended  to  aid  the  defendant  in  evading 
the  pavment  of  its  debts,  and  which,  it  seemed  sufficiently  plain,  had 
had  that  effect,  whatever  might  have  been  the  intent  of  the  legislature 
passing  them. 

The  bill  alleging  that  the  corporate  authorities  were  trustees  for  the 
benefit  of  the  creditors  of  the  city,  and  that  the  property  of  the  citizens 
was  a  trust  fund  for  the  payment  of  its  debts,  and  that  it  was  the  duty 
of  the  court  to  lay  hold  of  such  property  and  cause  it  to  be  justly 
applied,  now  prayed  that  the  court  would  subject  the  taxable  property 
of  the  city  to  the  paj-ment  of  the  judgments.  It  asked  specifically  that 
a  decree  might  be  made,  subjecting  the  taxable  property  of  the  citizens 
to  the  payment  of  the  complainant's  judgments,  and  that  the  marshal 
of  the  district  might  be  empowered  to  seize  and  sell  so  much  of  it  as 
might  be  necessary',  and  to  pay  over  to  him  the  proceeds  of  such  sale. 


The  charter,  of  the  city  contains  the  following  provision  : 

"  Nor  shall  any  real  or  personal  property  of  any  inhabitant  of  said 
cit3%  or  any  individual  or  corporation,  be  levied  upon  or  sold  by  virtue 
of  any  execution  issued  to  satisfy  or  collect  any  debt,  obligation  or 
contract  of  said  city." 

The  judges  holding  the  Circuit  Court  were  divided  in  opinion  upon 
the  questions  argued  before  them.  The  bill  was  dismissed.  The  case 
was  now  here  on  certificate  of  division  and  appeal,  the  error  assigned 
being  that  the  court  dismissed  the  bill,  when  it  ought  to  have  given  the 
relief  prayed  for. 

H.  W.  and  B.  W.  Tenney  {S.  U.  Pinney  with  them),  for  the  credi- 
tor appellant. 

D.  Hall  (M.  IT.  Carpenter  and  IT.  Z.  Palmer  with  him),  contra. 

Hunt,  J.  .  .  .  We  are  of  the  opinion  that  this  court_Jjaa  not  the 
power  to  direct  a  tax  to  be  levied  for  the  payment  of  these  judgmt-iits. 
TKis  power  to  impose  burdens  and  raise  money  is  the  highest  attribute 
5r^80vereignty,  and  is  exercised,  first,  to  raise  money  for  public  pur- 

I poses  only  ;  and,  second,  by  the  power  of  legislative  authority  only. 
It  is  a  power  that  has  not  been  extended  to  the  judiciarj'.  Especially 
is  It  beyond  the  power  of  the  Federal  judiciary  to  assume  the  place 


REES   V.    CITY   OF   WATERTOWN.  G69 

of  a  State  in  the  exercise  of  this  authority  at  once  so  delicate  and  so 
important.     The  question  is  not  entirely  new  in  this  court. 

[After  referring  to  authorities  upon  the  power  of  the  court  to  direct 
the  levy  of  a  tax  under  the  circumstances  of  this  case.] 

The  plaintiff  insists  that  the  court  may  accomplish  the  same  result 
under  a  different  name,  that  it  has  jurisdiction  of  the  persons  and  of 
the  property,  and  ma}'  subject  the  property  of  the  citizens  to  the  pa}-- 
ment  of  the  plaintiff's  debt  without  the  intervention  of  State  taxing 
oflScers,  and  without  regard  to  tax  laws.     His  theor}-  is  that  the  courti  Y  Vvt^  ^ 
should  make  a  decree  subjecting  the  individual  propertj-  of  the  citizens  I  (JLft-tA-C«*- 
of  Watertown  to  the  payment  of  the  plaintifTs  judgment ;  direct  the  'YM-^W*^^ 
marshal  to  make  a  list  thereof  from  the  assessment  rolls  or  from  such 
other  sources  of  information  as  he  may  obtain  ;  report  the  same  to  the 
court,  where  any  objections  should  be  heard  ;  that  the  amount  of  the 
debt  should  be  apportioned  upon  the  several  pieces  of  propert}'  owned 
by  individual  citizens  ;  that  the  marshal  should  be  directed  to  collect 
such  apportioned  amount  from  such  persons,  or  in  default  thereof  to 
sell  the  propert3^ 

As  a  part  of  this  theory',  the  plaintiff  argues  that  the  court  has 
authority'  to  direct  the  amount  of  the  judgment  to  be  wholly  made  from 
the  property  belonging  to  any  inhabitant  of  the  cit^',  leaving  the  citizens 
to  settle  the  equities  between  themselves. 

This  theory  has  many  difficulties  to  encounter.  In  seeking  to  obtain 
for  the  plaintiff  his  just  rights  we  must  be  careful  not  to  invade  the 
rights  of  others.  If  an  inhabitant  of  the  city  of  Watertown  should 
own  a  block  of  buildings  of  the  value  of  $20,000,  upon  no  principle  of 
law  could  the  whole  of  the  plaintiff"'s  debt  be  collected  from  that  prop- 
erty. Upon  the  assumption  that  individual  property  is  liable  for  the 
payment  of  the  corporate  debts  of  the  municipality,  it  is  only  so  liable 
for  its  proportionate  amount.  The  inhabitants  are  not  joint  and  sev- 
eral debtors  with  the  corporation,  nor  does  their  property  stand  in  that 
relation  to  the  corporation  or  to  the  creditor.  This  is  not  the  theory 
of  law,  even  in  regard  to  taxation.  The  block  of  building;s  we  haye^ 
supposed  is  liable  to  taxation  only  upon  its  value  in  proportion  to  the 
vaTue  of  the  entire  property,  to  be  asc!;rtained  by  assessment,  and  when 
the  proportion  is  ascertained  and  paid,  it  is  no  longer  or  further  liable. 
Tt  is  discharged.  The  residue  of  the  tax  is  to  be  obtained  from  other 
sources.  There  may  be  repeated  taxes  and  assessments  to  make  up 
delinquencies,  but  the  principle  and  the  general  rule  of  law  are  as  we 
have  stated. 

In  relation  to  the  corporation  before  us,  this  objection  to  the  liability 
of  individual  property  for  the  payment  of  a  corporate  debt  is  presented 
in  a  specific  form.     It  is  of  a  statutory  character. 

The  remedies  for  the  collection  of  a  debt  are  essential  parts  of  the 
contract  of  indebtedness,  and  those  in  existence  at  the  time  it  is  in- 
curred must  be  substantially  preserved  to  the  creditor.  Thus  a  statute 
prohibiting  the  exercise  of  its  taxing  power  by  the  city  to  raise  money 


670 


REES   V.    CITY   OF   WATEETOWN. 


\ 


for  the  payment  of  these  bonds  would  be  void.^  But  it  is  otherwise  of 
statutes  which  are  in  existence  at  the  time  the  debt  is  contracted.  Of 
these  the  creditor  must  take  notice,  and  if  all  the  remedies  are  pre- 
served to  him  which  were  in  existence  when  his  debt  was  contracted^ 
lie  has  no  cause  of  complaint.^  -— — 

By  section  nine  of  the  defendant's  charter  it  is  enacted  as  follows: 
"Nor  shall  an}-  real  or  personal  propertj'  of  any  inhabitant  of  said  city, 
or  an}'  individual  or  corporation,  be  levied  upon  or  sold  by  virtue  of 
any  execution  issued  to  satisfy  or  collect  any  debt,  obligation,  or 
contract  of  said  city." 

If  the  power  of  taxation  is  conceded  not  to  be  applicable,  and  the 
power  of  the  court  is  invoked  to  collect  the  mone}'  as  upon  an  exe- 
cution to  satisfy-  a  contract  or  obligation  of  the  city,  this  section  is 
directly  applicable  and  forbids  the  proceeding.  The  process  or  order 
asked  for  is  in  the  nature  of  an  execution  ;  the  property  proposed  to 
be  sold  is  that  of  an  inhabitant  of  the  cit}' ;  the  purpose  to  which  it  is 
to  be  applied  is  the  satisfaction  of  a  debt  of  the  city.  The  proposed 
remedy  is  in  direct  violation  of  a  statute  in  existence  when  the  debt 
jwas  incurred,  and  made  known  to  the  creditor  with  the  same  solemnit}' 
as  the  statute  which  gave  power  to  contract  the  debt.  All  laws  in 
existence  when  the  contract  is  made  are  necessarily  referred  to  in  it 
and  form  a  part  of  the  measure  of  the  obligation  of  the  one  party, 
and  of  the  right  acquired  by  the  other. ^ 

But  independent!}^  of  this  statute,  upon  the  general  principles  of  law 
and  of  equity  jurisprudence,  we  are  of  opinion  that  we  cannot  grant  the 
relief  asked  for.  The  plaintiff  invokes  the  aid  of  the  principle  that  all 
legal  remedies  having  failed,  the  court  of  chancery  must  give  him  a 
remedy  ;  that  there  is  a  wrong  which  cannot  be  righted  elsewhere,  and 
hence  the  right  must  be  sustained  in  chancery.  The  difficulty  arises 
from  too  broad  an  application  of  a  general  principle.  The  great  ad- 
vantage possessed  by  the  court  of  chancery  is  not  so  much  in  its  en- 
larged jurisdiction  as  in  the  extent  and  adaptability  of  its  remedial 
powers.  Generally  its  jurisdiction  is  as  well  defined  and  limited  as  is 
that  of  a  court  of  law.  It  cannot  exercise  jurisdiction  when  there  is 
an  adequate  and  complete  remedy  at  law.  It  cannot  assume  control 
over  that  large  class  of  obligations  called  imperfect  obligations,  resting 
upon  conscience  and  moral  duty  only,  unconnected  with  legal  obliga- 
tions. Judge  Story  says,*  "  There  are  cases  of  fraud,  of  accident,  and 
of  trust  which  neither  courts  of  law  nor  of  equity  presume  to  reliei'e  or 
to  mitigate,"  of  which  he  cites  many  instances.  Lord  Talbot  says,® 
"There  are  cases,  indeed,  in  which  a  court  of  equity  gives  remedy 
where  the  law  gives  none,  but  where  a  particular  remedy  is  given  bj 


1  Van  Hoffman  v.  City  of  Quincy,  4  Wallace,  535. 

2  Cooley,  Constitutional  Limitations,  285,  287. 
'  Cooley,  Constitutional  Limitations,  285. 

*  1  P>quity  Jurisprudence,  §  61. 

*  Heard  v.  Stanford,  Cases  Tempore  Talbot,  174. 


EEES   V.   CITY    OF   WATERTOWN.  G71 

law,  and  that  remedy  bounded  and  circumscribed  b}'  particular  iiilos, 
it  would  be  very  improper  for  this  court  to  take  it  up  where  the  law 
leaves  it,  and  extend  it  further  than  the  law  allows." 

Generally  its  jurisdiction  depends  upon  legal  obligations,  and  its 
decrees  can  only  enforce  remedies  to  the  extent  and  in  the  mode  by 
law  established.  With  the  subjects  of  fraud,  trust,  or  accident,  when 
properly  before  it,  it  can  deal  more  completely  than  can  a  court  of  law. 
These  subjects,  however,  may  arise  in  courts  of  law,  and  there  be  well 
disposed  of.^ 

A  court  of  equity  cannot,  by  avowing  that  there  is  a  right  but  no 
remed}'  knovvh  to  The'Iaw,  create  a  remedy  in  violation  of  law,  or  even 
without  the  authority  of  law.  It  acts  upon  established  principles  not 
bnl}-,  but  through  established  channels.  Thus,  assume  that^  the  plaintiff 
is  entitled  to  the  payment  of  his  judgment,  and  that  the  defendant 
neglects  its  duty  in  refusing  to  raise  the  amount  b}'  taxation,  it  does 
not  follow  that  this  court  may  order  the  amount  to  be  made  from  the 
private  estate  of  one  of  its  citizens.  This  summary-  proceeding  would 
involve  a  violation  of  the  rights  of  the  latter.  He  has  never  been  heard 
in  court.  He  has  had  no  opportunity  to  establish  a  defence  to  the  debt 
itself,  or  if  the  judgment  is  valid,  to  show  that  his  proi)erty  is  not  liable 
to  its  payment.  It  is  well  settled  that  legislative  exemptions  from 
taxation  are  valid,  that  such  exemptions  ma}'  be  perpetual  in  their 
duration,  and  that  they  are  in  some  cases  be3'ond  legislative  interfer- 
ence. The  proceeding  supposed  would  violate  that  fundamental  prin- 
ciple contained  in  chapter  twenty-ninth  of  Magna  Charta  and  embodied 
in  the  Constitution  of  the  United  States,  that  no  man  shall  be  deprived  of 
his  propert}-  without  due  process  of  law  —  that  is,  he  must  be  served  with 
notice  of  the  proceeding,  and  have  a  da}'  in  court  to  make  his  defence.^ 

"Due  process  of  law  (it  is  said)  undoubtedly  means  in  the  due 
course  of  legal  proceedings,  according  to  those  rules  and  forms  which 
have  been  established  for  the  protection  of  private  rights." '  In  the 
New  England  States  it  is  held  that  a  judgment  obtained  against  a  town 
may  be  levied  upon  and  made  out  of  the  propert}-  of  an}'  inhabitant  of 
the  town.  The  suit  in  those  States  is  brought  in  form  against  the  in- 
habitants of  the  town,  naming  it ;  the  individual  inhabitants,  it  is  said, 
may  and  do  appear  and  defend  the  suit,  and  hence  it  is  held  that  the 
individual  inhabitants  have  their  day  in  court,  are  each  bound  by  the 
judgment,  and  that  it  may  be  collected  from  the  property  of  any  one  of 
them.*  This  is  local  law  peculiar  to  New  England.  It  is  not  the 
law  of  this  country  generally,  or  of  England.^  It  has  never  been  held 
to  be  the  law  in  New  York,  in  New  Jersey,  in  Pennsylvania,  nor,  as 
stated  by  Mr.  Cooley,  in  any  of  the  Western   States.®     So  far  as  it 

1  1  Story's  Equity  Jurisprudence,  §  60. 

2  Westervelt  v.  Gregg,  12  New  York,  209.  ^  jy, 

*  See  the  cases  collected  in  Cooley's  Constitutional  Limitations,  240-245. 
6  Russel  v.  Men  of  Devon   2  Term,  667. 

*  See  Emeric  v  Oilman,  10  California,  408,  where  all  the  cases  are  collected. 


672  REES   V.   CITY   OF   WATERTOWN. 

rests  upon  the  rule  that  these  municipalities  have  no  common  fund, 
and  that  no  other  mode  exists  by  whicii  demands  against  them  can  be 
enforced,  he  says  that  it  cannot  be  considered  as  applicable  to  tiiose 
States  where  provision  is  made  for  compulsory  taxation  to  satisfy 
judgments  against  a  town  or  city.^ 

The  general  principle  of  law  to  which  we  have  adverted  is  not  dis- 
turbed by  these  references.  It  is  applicable  to  the  case  before  us. 
Whether,  in  fact,  the  individual  has  a  defence  to  the  debt,  or  by  way 
of  exemption,  or  is  without  defence,  is  not  important.  To  assume  tiiat 
he  has  none,  and,  therefore,  that  he  is  entitled  to  no  day  in  court,  is  to 
assume  against  him  the  very  point  he  maj'  wish  to  contest. 

Again,  in  tlie  case  of  Emeric  v.  Gilman,  before  cited,  it  is  said : 
"The  inhabitants  of  a  county  are  constantly  changing  ;  those  who  con- 
tributed to  the  debt  may  be  non-residents  upon  the  recovery  of  the 
judgment  or  the  levy  of  the  execution.  Those  who  opposed  the  crea- 
tion of  the  liability  may  be  subjected  to  its  pa3'raent,  while  those,  by 
whose  fault  the  burden  has  been  imposed,  may  be  entirely  relieved  of 
responsibility.  .  .  .  To  enforce  this  right  against  the  inhabitants  of  a 
count}'  would  lead  to  such  a  multiplicity  of  suits  as  to  render  the  right 
valueless."  We  do  not  perceive,  if  the  doctrine  contended  for  is  cor- 
rect, why  the  money  might  not  be  entireh'  made  from  property  owned 
b}'  the  creditor  himself,  if  he  should  happen  to  own  propert}'  within  the 
limits  of  the  corporation,  of  sufficient  value  for  that  purpose. 

The  difficulty  and  the  embarrassment  arising  from  an  apportionment 
or  contribution  among  those  bound  to  make  the  payment  we  do  not 
regard  as  a  serious  objection.  Contribution  and  apportionment  are 
recognized  heads  of  equity  jurisdiction,  and  if  it  be  assumed  that  pro- 
cess could  issue  directl}'  against  the  citizens  to  collect  the  debt  of  the 
city,  a  court  of  equity  could  make  the  apportionment  more  convenient!}^ 
than  could  a  court  of  iaw.'^ 

We  apprehend,  also,  that  there  is  some  confusion  in  the  plaintiff's 
proposition,  upon  which  the  present  jurisdiction  is  claimed.  It  is  con- 
ceded, and  the  authorities  are  too  abundant  to  admit  a  question,  that 
there  is  no  chancery  jurisdiction  where  there  is  an  adequate  remedy  at 
law.  Xhejwrit  of  mandamus  is,  no  doubt,  the  regular  remedy  in  a  case 
like  the  present,  and  ordinarily  it  is  adequate  and  its  results  are  satis- 
factory. The  plaintiff  alleges,  however,  in  the  present  case,  that  he 
has  issued  such  a  writ  on  three  different  occasions  ;  that,  by  means  of 
the  aid  afforded  b}^  the  legislature  and  by  the  devices  and  contrivances 
set  forth  in  the  bill,  the  writs  have  been  fruitless  ;  that,  in  fact,  the}' 
aff'ord  him  no  remedy.  The  remedy  is  in  law  and  in  theor}'  adequate 
and  perfect.  The  difficulty  is  in  its  execution  only.  The  want  of  a 
remed}'  and  the  inability  to  obtain  the  fruits  of  a  remed}^  are  quite  dis- 
tinct, and  yet  they  are  confounded  in  the  present  proceeding.  To 
illustrate  :    the  writ  of  habere  facias  possessionem  is  the  established 

1  Cooley's  Constitutional  Limitations,  246. 

2  1  Story's  Equity  Jurisprudeuce,  §  470  and  onwards. 


THOMPSON  V.   ALLEN  COUNTY.  673 

remedy  to  obtain  the  fruits  of  a  judgment  for  the  plaintiff  in  ejectment. 
It  is  a  full,  adequate,  and  complete  remedy.  Not  many  years  since 
there  existed  in  Central  New  York  combinations  of  settlers  and  tenants 
disguised  as  Indians,  and  calling  themselves  such,  who  resisted  the 
execution  of  this  process  in  their  counties,  and  so  effectually  that  for 
some  3-ears  no  landlord  could  gain  possession  of  his  land.  There  was 
a  perfect  remedy  at  law,  but  through  fraud,  violence,  or  crime  its  exe- 
cution was  prevented.  It  will  hardly  be  argued  that  this  state  of 
things  gave  authority  to  invoke  the  extraordinary  aid  of  a  court  of 
chancery.  The  enforcementof  the  legal  remedies  was  tcmporarjly 
suspended  b}^  means  of  iTIegal  violence,  but  the  remedies  remained  as 
before.  It  was  the  case  of  a  miniature  revolution.  The  courts  of  law 
lost  no  power,  the  court  of  chancery  gained  none.  The  present  case 
stands  upon  the  same  principle.  Tlie  legal  remedy  is  adequate  and 
complete,  and  time  and  the  law  must  perfect  its  execution. 

Entertaining  the  opinion  that  the  plaintiff  has  been  unreasonably 
obstructed  in  the  pursuit  of  his  legal  remedies,  we  should  be  quite  will- 
ing to  give  him  the  aid  requested  if  the  law  permitted  it.  We  cannot, 
however,  find  authority  for  so  doing,  and  we  acquiesce  in  the  conclusion 
of  the  court  below  that  the  bill  must  be  dismissed. 

Judgment  affirmed. 

Mr.  Justice  Clifford,  with  whom  concurred  Mr.  Justice  Swatne,  ,0^      *"   .^ 

dissenting :  wrJTr^. 

I  dissent  from  the  opinion  of  the  court  in  this  case  upon  the  ground  ^*a1J 
that  equity  will  never  suffer  a  trust  to  be  defeated  by  the  refusal  of  the 

trustee  to  administer  tlie  fund,  or  on  account  of  the  misconduct  of  the  ^'''^^  ^ 

trustee,  and  also  because  the  effect  of  the  decree  in  the  court  below,  if  Vv4^a- 

affirmed  by  this  court,  will  be  to  give  judicial  sanction  to  a  fraudulent  JUv>(r( 

repudiation  of  an  honest  debt.     For  which  reasons,  as  it  seems  to  me,  •^^^w^ 
the  decree  of  the  subordinate  court  should  be  reversed. 

^^  A        Arv>,*€ha  >vi^  *vv*  *rvs^  *jc/%>v. 

THOMPSON    V.   ALLEN   COUNTY   et  als.     6|.vH>Ji>X-  »-o  /v 

1885.     115  C/.  5.  550.1  g^^jJUJuJv  /  oA^ 

Appeal  from  U.  S.  Circuit  Court  for  District  of  Kentucky.  J^    ^^C3>  ^W^-<r-«l 
Bill  in  equity.     The  case  was  tried  on  bill,  answer,  exceptions  to    cU.'Ci  ' 
answer,  and  a  stipulation  as  to  the  facts.  tt\i?fe£v-i 

Plaintiff  had  recovered  judgment  against  Allen  County  on  coupons      I^a<.{^ 
for  interest  on  bonds,  issued  by  the  county  under  authority  of  an  act      *  ^\ 
of  the  legislature  to  pay  for  subscription  to  railroad  stock.     Executions     . 
were  returned  "  no  property  found."     The  act  under  which  the  bonds     ty\^^*^ 
were  issued  provided  that  the  County  Court  should  levy  a  tax  for  "  aco-v-vw^ 

1  Statement  abridered.     Portions  of  opinions  omitted. — Ed.  ^    *  \      ^-, 


<tc5^2SU.*-:^ 


>^^lt^ 


674  THOMPSON  V.   ALLEN  COUNTY. 

sum  sufficient  to  pay  the  interest  on  such  bonds  as  it  accrues,  togethei 
with  the  costs  of  collecting  the  same."  The  act,  as  amended,  also 
required  the  County  Court  to  appoint  a  special  collector  to  collect  all 
taxes  levied  under  it.  The  U.  S.  Circuit  Court,  at  the  instance  of  the 
present  plaintiffs,  issued  a  writ  of  mandamus  to  the  justices  of  the 
Allen  County  Court,  under  which  they  levi^  a  tax  to  pay  the  plain- 
tiffs judgment.  They  also  elected  one  Stork  collector  of  said  tax  levy, 
but  he  refused  to  give  bond  or  to  accept  the  office.  The  Count}'  Court 
in  good  faith  and  diligently  endeavored  to  find  a  proper  person  to  act 
as  collector,  but  no  proper  person  could  be  found  who  would  undertake 
that  office.  The  parties  now  agree  that  the  plaintiff  is  without  remedy 
for  the  collection  of  his  debt,  except  through  the  aid  of  the  U.  S.  Cir- 
cuit Court  in  the  appointment  of  a  receiver,  as  prayed  for  in  the  bill, 
or  other  appropriate  order  of  the  court. 

The  bill  in  equity  gives  the  names  of  about  thirty  of  the  principal 
tax-payers  of  the  county,  with  the  value  of  the  assessed  property  of 
each,  and  the  amount  of  tax  due  from  him  under  said  lev}^  alleging 
that  the  tax-papers  were  too  numerous  to  be  sued,  and  praying  that 
these  might  be  sued  as  defendants  representing  all  others  in  like  cir- 
cumstances, and  be  required,  with  the  count}',  to  answer  the  bill. 

The  prayer  of  the  bill  for  relief  was,  that,  inasmuch  as  the  complain- 
^^SJ»'  ant  was  without  remed}'  at  law,  the  court  sitting  in  chancery  would 
appoint  a  receiver,  who  should  collect  these  taxes,  and  that  the  money 
arising  therefrom  be  from  time  to  time  paid  over  in  satisfaction  of 
"plaintiff's  judgments,  and  that  the  several  tax-payers  of  said  count}', 
made  defendants,  be  required  to  pay  into  court,  with  like  effect  the 
sums  due  by  them  as  alleged  in  the  bill. 

The  justices  in  the  Circuit  Court  were  divided  in  opinion.  In  ac- 
cordance with  the  view  of  the  presiding  judge,  the  bill  was  dismissed. 
(13  Federal  Reporter,  97.)     An  appeal  was  taken. 

Charles  Eginton^  (  TF.  0.  jDoc?c?  with  him,)  for  appellant. 

John  Mason  Brown,  {Alexander  P.  Humphrey  and  George  M.  Davie, 
with  him,)  for  appellees. 

Miller,  J.  .  .  .  The  cases  in  which  it  has  been  held  that  a  court 
of  equity  cannot  enforce  the  levy  and  collection  of  taxes  to  pay  the 
debts  of  municipal  corporations  began  with  Walkley  v.  City  of  Mus- 
catine, 6  Wall.  481. 

In  that  case,  the  complainant  Walkley  had  procured  judgments 
against  the  city  of  Muscatine  for  interest  on  bonds  of  the  city,  execu- 
tions had  been  returned  "  nulla  bona"  the  mayor  and  aldermen  had 
refused  to  levy  a  tax  for  the  payment  of  the  judgments,  and  had  used 
the  annual  tax  for  other  purposes  and  paid  nothing  to  plaintiff. 

Walkley  then  filed  his  bill  in  equity  praying  a  decree  that  the  mayor 
and  aldermen  be  compelled  to  levy  a  tax  and  appropriate  so  much  of 
its  proceeds  as  might  be  necessary  to  pay  his  judgments. 

This  court  said,  by  Mr.  Justice  Nelson,  that  the  remedy  was  by 
I    mandamus  at  law,  and  "we  have  been  furnished  with   no  authority 


I 


>n 


THOMPSON  V.   ALLEN  COUNTY.  675 

for  the  substitution  of  a  bill  in  equity  and  injunction  for  the  writ  of 
mandamus,"  p.  483;  and  he  adds,  that  "  a  court  of  equity  is  invoked 
as  auxiliary  to  a  court  of  law  in  the  enforcement  of  its  judgments 
only  when  the  latter  is  inadequate  to  afford  the  proper  remedy," 
pp.  483-4.  ,%d»^ 

By  inadequacy  of  the  remedy  at  law  is  here  meant,  not  that  it  fidlsj  _j  ] 

to  produce  the  money  —  that  is  a  very  usual  result  in  the  use  of  alll  ^'j)  A*--^ 
remedies  —  but  that  in  its  nature  or  character  it  is  not  fitted  or  adapted  ^^fs"^-^"*^ 
to  the  end  in  view.  i<a!JU^*^  "^ 

[The  learned  Judge  then  refers  to  Jiees  v.  Watertown,  19  Wallace, 
107,  and  other  cases;  and  gives  an  extract  from  Waite,  C.  J.,  in 
Meriwether  v.  Garrett,  102  U.  S.  472,  ending  with  the  following  sen- 
tence:  "  Whether  taxes  levied  in  obedience  to  contract  obligations,  or 
under  judicial  direction,  can  be  collected  through  a  receiver  appointed 
by  a  court  of  chancery,  if  there  be  no  public  officer  charged  with  au- 
thority from  the  legislature  to  perform  that  duty,  is  not  decided,  as  the 
case  does  not  require  it."] 

But  though  the  question  was  not  then  decided,  and  it  is  urged  upon 
HS  now,  we  see  no  more  reason  to  hold  that  the  collection  of  taxes 
alreadj'  assessed  is  a  function  of  a  court  of  equity  than  the  levy  or 
assessment  of  such  taxes.     A  court  of  law  possesses  no  power  to  levyl 
taxes.     Its  power  to  compel  officers  who  are  lawiuiiv  apuointed    torf 
that  purpose,  m  a  case  where  the  dut}'  to  do  so  is  clear,  and  is  strictly  1 
ministerial,  rests  upon  a  ground  very  different  from  and  much  narrower \^^  ,  Cjj^ 
Iban  tliat   under  which  a   court  of  chancer}'  would  act  in  appointing" 
Its  own  officer  either  to  assess  or  collect  such  a  tax. 

In  the  one  case  the  officers  exist,  the  duty  is  plain,  the  plaintiff  has 
a  legal  right  to  have  these  officers  perform  that  dut}'  for  his  benefit,  and 
the  I'emedy  to  compel  this  performance,  nameh,  the  writ  of  mandamus, 
has  been  a  well  known  process  in  the  hands  of  the  courts  of  common 
law  for  ages.  In  the  other  there  exists  no  officer  authorized  to  levy 
the  tax  or  to  collect  it  when  levied.  The  power  to  enforce  collec- 
tion when  the  tax  is  levied,  or  to  cause  it  to  be  levied  bv  existing 
officers,  is  a  common-law  power,  strictly  guarded  and  limited  to  cases 
of  mere  ministerial  duty,  and  is  not  one  of  the  powers  of  a  court  of 
chancer}'.  It  would  require  in  this  court,  not  the  compulsory  process 
against  some  existing  officer  to  make  him  perform  a  recognized  dut}', 
but  the  appointment  b}'  the  court  of  such  an  officer  and  a  decree  direct- 
ing him  what  to  do. 

In  the  one  case,  his  power  proceeds  from  the  law,  and  he  is  com- 
pelled to  exercise  it;  in  the  other,  it  proceeds  from  the  court  which 
first  makes  its  own  decree,  and  makes  an  officer  to  enforce  it.  No\  Wy>  ''1A5-* 
such  power  has  ever  yet  been  exercised  by  a  court  of  chancery.  The! 
appointment  of  its  own  officer  to  collect  taxes  levied  by  ovdw  of  a 
common-law  cour*  is  as  much  without  authority,  as  to  appoint  the 
same  oflficer  to  lev^  and  collect  the  tax.  They  are  parts  of  the  same 
proceeding,  and  relate  to  the  same  matter.     If  the  common-law  court 


iL^^ 


* 


676  THOMPSON  V.   ALLEN  COUNTY. 

can  compel  the  assessment  of  a  tax,  it  is  quite  as  competent  to  enforce 
its  collection  as  a  court  of  chancery.     Having  jurisdiction  to  compe] 
the  assessment,  there  is   no  reason  whj-  it  should  stop  short,  if  any 
f\  further  judicial  power  exists  under  the  law,  and  turn  the  case  over  to 

ftjf  a  court  of  equity.     Its  sheriff  or  marshal  is  as  well  qualified  to  collect 

^^       /  the  tax  as  a  receiver  appointed  by  the  court  of  chancery. 

The  difficulty  is  that  no  power  exists  in  either  court  to  fill  the 
vacanc}'  in  the  office  of  tax  collector ;  and  the  case  of  Lee  County 
/Sifpervisors  v.  Hogers,  7  Wall.  175,  where  the  laws  of  the  State  of 
Iowa  expressl}'  authorized  the  court  to  enforce  its  writ  of  mandamus 
by  making  such  appointment,  the  onl}-  case  in  which  it  has  ever  been 
done,  shows  that  without  such  legislative  authority  it  cannot  be  done. 

It  is  the  duty  of  the  marshals  of  the  Federal  courts  and  the  sheriffs 
of  Slate  courts  to  levy  executions  issuing  from  these  courts    on  the 
property-  of  defendants,  and  sell  it,  to  raise  money  to  pay  their  judg- 
ments.    Let  us  suppose  that,  for  some  reason  or  other,  the  office  of 
(  C*  marshal  or  sheriff  became  vacant  for  a  while.     Would  that  authorize 

a(  A.\  the  court  of  equity  of  the  Federal  or  State  government  to  appoint  a 
sheriff  or  marshal  ?  or  to  appoint  a  receiver  to  lev}'  the  execution  ?  or, 
'Tjl  if  it  had  been  levied,  to  sell  the  property,  collect  the  purchase-money, 
)  and  pa}'  it  to  plaintiflJ"  ?  If  this  cannot  be  done,  if  it  never  has 
'^'t^'C'*^  been  done,  why  can  it  do  a  much  more  unjudicial  act,  b}-  appointing  a 
lUr-.  f\  collector  to  collect  the  taxes,  or,  what  is  still  less  appropriate,  appoint- 
i-o^  ing  a  receiver,  and  endow  him  with  that  power  ? 

To  appoint  a  marshal  or  a  sheriff  to  execute  the  process  of  a  court 
to  enforce  the  judgment  of  that  court,  is  not  such  a  wide  departure 
from  the  judicial  function  as  to  appoint  a  receiver  to  collect  taxes  ;  but 
no  case  has  been  cited  of  the  exercise  of  even  the  former  power  by  the 
court,  much  less  the  appointment,  b}-  a  court  of  chancery,  of  an  officer 
to  execute  the  processes  of  a  court  of  law.  The  appointment  of  special 
masters  or  commissioners  to  make  sales  under  decrees  in  chancerv, 
is  the  ordinary  mode  of  that  court  to  enforce  its  decrees  in  cases  where 
the  court  has  jurisdiction  of  the  subject  matter  of  the  suit. 

Not  only  are  the  decisions  here  reviewed  of  our  own  court  clearly 
opposed  to  the  exercise  of  this  power  by  the  court  of  equit}',  but  the 
decisions  of  the  highest  court  of  the  State  of  Kentucky  are  equally 
emphatic.  It  is  the  powers  derived  from  the  statute  law  of  that  State 
under  which  alone  this  tax  can  be  collected.  The  issue  of  the  bonds 
on  which  tlie  judgment  was  obtained  was  by  virtue  of  a  special  statute, 
and  that  statute  prescribed  the  mode  of  lev3'ing  and  collecting  this  tax. 
It  enacted  that  its  collection  should  not  be  by  the  sheriff  who  col 
lected  the  ordinary  taxes  for  the  State  and  county,  but  that  a  special 
tax  collector  should  be  appointed  for  that  purpose  by  the  justices  of 
the  County  Court  who  levied  the  tax.  The  Court  of  Appeals,  construing 
this  statute,  which  was  in  existence  wlien  the  bonds  were  issued,  holds 
that  no  other  officers  but  these  can  collect  the  taxes,  and  his  decided, 
both  in  reference  to  this  law  and  the  Constitution  of  the  Stnti^  that  a 


THOMPSON  V.   ALLEN  COUNTY.  677 

court  of  chancery  canuot  appoint  such  an  officer  or  exercise  this  func- 
tion of  tax  collector.  McLean  County  Jfrecinct  v.  Deposit  Mank 
81  Ky.  254. 

This  decision,  if  not  conchisive,  is  entitled  to  great  weight  as  con- 
struing the  statute  under  which  alone  this  tax  can  be  levied  and 
collected. 

These  considerations  require  that  the  answers  to  each  of  the  three 
questions  certitied  to  us  by  the  judges  of  the  Circuit  Court  be  in  the 
negative,  and  that  the  decree  of  that  court  dismissing  the  bill  be 

Affirmed. 


Vt> 


Harlan,  J.,  dissenting.      [After  stating  the  case,  and  referring  to 
various  authorities  relied  on  in  the  majority  opinion.] 

These  cases  only  establish  the  doctrine  that  the  levying  of  taxes  is 
not  a  judicial  function. 

It  seems  to  me  that  the  granting  of  relief  to  Thompson  will  not,  in 
any  degree,  disturb  the  principles  announced  in  the  foregoing  cases. 
The  bill  does  not  ask  the  court  to  usurp  the  function  of  levying 
taxes.  That  dut}'  has  been  performed  by  the  only  tribunal  authorized 
to  do  it,  viz.,  the  County  Court  of  Allen  County.  Nothing  remains  to 
be  done,  except  to  collect  from  individuals  specific  sums  of  mone^-  which 
the}'  are  under  legal  obligation  to  pay.  The  collections  of  these  sums 
will  not  interfere  with  any  discretion  with  which  the  Allen  County 
Court  is  invested  b}-  law  ;  for,  by  its  own  order,  made  in  conformity 
with  the  law  of  the  State,  and  by  the  judgment  in  the  mandamus  pro- 
ceedings, the  sums  due  from  the  individual  defendants,  and  from  other 
tax-paj'ers,  have  been  set  apart  for  the  payment  of  Thompson's  judg- 
ments. Those  sums,  when  collected,  cannot  be  otherwise  used.  As 
the  County  Court  cannot  find  an}*  one  who  will  accept  the  office  of 
special  collector,  and  as  the  parties  agree  that  there  is  no  mode  of  col- 
lecting the  sums  set  apart  in  the  hands  of  the  individual  defendants 
and  other  tax-pajers,  for  the  payment  of  Thompson,  I  am  unable  to 
perceive  wh}'  the  Circuit  Court,  sitting  in  equity,  maj'  not  cause  these 
sums  to  be  applied  in  satisfaction  of  its  judgments  at  law.  The  plain-j\^^  »^^^^xj 
tiff  has  no  remedy  at  law ;  for,  the  common-law  court  in  rendering  ^jy^ 

judgment  has  done  all  that  it  can  do,  and  the  local  tribunal,  by  levying 
the  required  tax  and  seeking  the  aid  of  a  special  collector  to  collect  it, 
has  done  all  that  it  can  do.  There  is  no  suggestion,  or  even  pretence, 
that  the  tax-payers  who  are  sued  dispute  the  regularity  of  the  assess- 
ment made  against  them  by  the  Count}-  Court.  Admitting  their  legal 
liability  for  the  specific  amounts  assessed  against  them,  and  conceding 
that  what  they  owe  must,  when  paid,  go  in  satisfaction  of  Thompson's 
judgments,  they  dispute  the  authority  of  any  judicial  tribunal  to  com- 
pel them  to  pay  it  over.  With  money  in  their  hands,  equitably 
belonging  to  the  judgment  creditor,  they  walk  out  of  the  court  whose 
judgments  remain  unsatisfied,  announcing,  in  effect,  that  they  will  hold 
negotiations  only  with  a  "  special  collector,"  who  has  no  existence. 


678 


THOMPSON    V.   ALLEN   COUNTY. 


That  the  court  below,  sitting  in  equity  —  after  it  has  given  a  judg- 
/  ment  at  law  for  mouey,  and  after  a  return  of  nulla  bona  against  the 
debtor  —  may  not  lay  hold  of  moneys  set  apart,  by  the  act  of  the 
debtor,  in  the  hands  of  individuals  exclusively  for  the  payment  of  that 
judgment,  and  which  money,  the  parties  agree,  cannot  be  otherwise 
reached  than  by  being  brought  into  that  court,  under  its  ordei's.Js  a 
confession  of  helplessness  on  the  part  of  the  courts  of  the  United 
unwillins;  to  make. 


States  that  I  am 

opinion  and  judgment  in  this  case. 


I,  therefore,  dissent  from  the 


A'^' 


\ 


^ 


'y 


INDEX. 


[When  reference  is  to  a  single  page,  it  indicates  the  case  beginning  on  that  page.] 


A. 

Admiralty,  liability  of  municipal  corporation  in,  566. 
Admission  fee,  power  to  charge,  to  enclosed  fields,  438,  440. 
Advertising  for  bids,  effect  of,  377. 
Amendment,  legality  of  passage  of,  195. 
Arrest,  liability  for  false,  580. 
Asylum,  power  of  city  to  aid,  318. 
Athletic  field,  power  to  enclose,  438,  440. 
Ayes  and  nays,  entry  of,  188. 


B. 

Billboards,  power  to  regulate,  289. 
Bonds,  power  to  issue,  356,  359. 

negotiable,  371. 

unauthorized,  liability  on,  474-513. 
Books  of  city,  right  to  examine,  172. 
Bridge,  compulsory  maintenance  of,  114. 

liability  for  defect  in,  530. 

obligation  to  maintain,  248. 
Building,  injury  caused  by  employee  of  city  constructing,  635. 
liabiUty  for  defect  in  public,  534,  571,  632. 
in  leased,  642. 

defect  in,  used  for  gain,  647. 

pubUc,  power  to  erect,  417. 


Canals,  power  to  survey  for,  335. 

Celebration,  power  to  spend  money  on,  245,  317. 

Cemetery,  Uability  for  cutting  trees  in,  641. 

power  of  state  over,  123. 
Charity,  power  to  aid  private,  318. 
City,  what  constitutes  action  by,  148. 
City  council,  legality  of  action  by,  162. 

rules  of,  175,  178,  195. 

interest  of  members  in  legislation,  188. 

election  of  officers  by,  200. 

special  meetings  of,  249. 
City  hall,  defects  in,  632. 
Clerk,  power  of,  to  amend  records,  170. 
Compensation  of  officers,  228,  236. 


680  INDEX. 

Consent  of  inhabitants  unnecessary  to  create  municipal  corporation,  18. 
Consolidation  of  municipal  corporations,  40. 
Construction  of  public  works,  liability  for  negligence  in,  633,  635. 
Contract,  power  to  make,  356  et  seq. 

requirement  of  advertising,  377. 

beyond  debt  limit,  381-408. 

to  deal  with  property.     See  Property. 

Uability  on,  474  et  seq. 

bonds,  474-513. 

loans,  513-516,  520,  524. 

material,  516. 

furniture,  529. 
Crossings,  power  to  require  gates  at,  286. 
Curfew  ordinance,  267. 


D. 

Debt,  effect  of  division  of  territory  upon,  20-31. 

of  annexation  or  consolidation,  45. 

of  dissolution,  54-69. 

power  to  create,  356  et  seq. 

limit  of,  381-408. 
De  facto  mxuiicipal  corporation,  69. 

officer,  236. 
Disease,  liability  for  communication  of,  564. 
District  of  Columbia,  whether  a  municipal  corporation,  3 . 
Division  of  municipal  corporation,  effect  of,  20-38. 
DweUing-house  for  employee,  power  to  erect,  424. 


E. 

Election  of  officers,  154,  156. 

Electric  lighting  plant,  liability  for  negUgence  in  operating,  643. 

Embankment,  liability  for,  532. 

Execution,  levy  of,  against  city,  653. 


F. 

Farm,  defect  in  buildings  on,  647. 

Fenders,  power  to  require,  on  street  cars,  271. 

Fire,  defects  in  hydrants  or  other  appliances  for  extinguishing,  618,  622. 

negligence  in  extinguishing,  619,  620. 

power  to  guard  against,  by  ordinance,  273. 
Fire  limits,  power  to  set  up,  280. 
Fourth  of  July,  power  to  celebrate,  245,  311. 
Franchise,  power  to  grant,  on  condition,  300. 

whether  violated  by  license  fee,  433. 
Functions  of  municipal  corporations,  13-17. 
Furniture,  Uability  of  city  for  unauthorized  purchase  of,  529. 


Gas  works,  power  to  lease,  453. 


INDEX.  681 


H. 


Health,  liability  for  employees  of  department  of,  582,  585,  587,  591. 

power  to  preserve,  252. 
Hearing  necessary  for  removal  of  officer,  217. 
Highway.     See  Street. 

Hours  of  labor,  power  of  state  to  regulate,  130. 
Hydrants,  defects  in,  618,  622. 


I. 

Improvements,  power  to  survey  for,  335. 
Initiative,  legislation  by,  149. 
Injunction  against  city  to  collect  debt,  667. 
Insane  asylum,  liability  for  negligence  in,  592. 
Investigation,  power  to  expend  money  upon,  350. 


L. 

Labor,  power  of  state  to  regulate  hours  and  conditions  of,  130-147. 
Land,  injury  by  city  to,  555,  557. 

occupation  of,  558. 

dangerous,  liability  for,  639. 

power  to  sell,  443,  445. 
to  lease,  453. 
Legislature,  power  of,  to  control  municipal  corporations,  82-147. 
Liability  of  municipal  corporation.     See  Contract;  Toet. 
Librarian,  right  to  send,  to  meeting,  331. 
License  fee  on  poles,  433. 

whether  franchise  violated  by,  433. 
Loans,  unauthorized,  liability  for,  513-516,  520,  524. 


M. 

Mandamus  to  compel  levy  of  taxes,  657,  659,  662. 
Market,  power  to  build,  240. 

Meeting  of  administrative  board  necessary  to  do  business,  207. 
Meetings  of  city  council,  special,  249. 
Milk,  inspection  of,  282. 
Money,  power  to  expend  in  advertising,  340. 
on  celebration,  245,  317. 
on  private  asylums,  318. 
on  legislative  hearings,  319. 

on  reimbursement  of  officers,  326,  330,  342,  347,  348. 
in  sending  officers  to  other  cities,  331,  336,  338. 
in  pensioning  officers,  333. 
in  surveying  for  improvements,  335. 
in  investigating  public  questions,  350. 
Municipal  corporations,  liability  of.     See  Contract;  Tort. 
departments  of,  175. 
Legislative  department,  175  et  seq. 
Administrative  departments,  203  et  seq. 
legislative  control  over,  82  et  seq. 


682  INDEX. 

Municipal  corporations,  legislative  change  of  oflBcers,  82,  92. 

of  form  of  government,  92. 
management  of  police  by  state,  100. 
compulsory  taxation  of,  for  police,  101. 

for  schools,  105. 

for  payment  of  damage,  108. 

maintenance  of  bridge,  114. 

subscription  to  railroad,  120. 
power  of  state  to  control  cemetery,  123. 
to  regulate  hours  and  conditions  of  labor,  130-147. 
organization  of,  148  et  seq. 
action  by  initiative,  referendum,  &c.,  149. 
nature  of,  1  et  seq. 

distinction  between,  and  other  corporations,  1-13. 
functions  of,  13-17. 

creation,  alteration,  and  dissolution  of,  18. 
division  of,  20-38. 
territory  of,  38. 

annexation  or  consoUdation  of,  40-54. 
abolition  of,  54—69. 
succession  of,  64-72. 
dissolution  of,  72-81. 
officers  of.     See  Officers. 

powers  of.     See  Powers. 


N. 

Nature  of  municipal  corporation,  1-13. 

Non-user,  existence  of  corporation  not  terminated  by,  72,  80. 

Note,  power  to  issue,  363,  368. 


O. 

Office,  compulsory  acceptance  of,  165. 

Officer,  UabiUty  for  negligence  of,  540,  542,  545. 

Officers,  authority  to  create,  211. 

removal  of,  214,  217. 

who  are,  219. 

effect  of  legal  exclusion  of,  from  office,  223. 

compensation  of,  228. 

de  facto,  236. 

change  of,  by  state,  82,  92. 

election  of,  154,  156. 

power  to  reimburse,  326,  330,  342,  347,  348. 
to  visit  other  cities,  331,  336,  338. 
to  pension,  333. 
Omnibus,  power  to  regulate,  255. 
Opera  house,  power  to  lease,  467. 
Ordinances,  formalities  for  adoption,  178,  195. 

liability  for  failure  to  pass,  583. 
to  enforce,  542,  569. 

power  to  pass,  252  et  seq. 

must  be  reasonable,  252  et  seq. 

to  preserve  health,  252. 

to  regulate  street  traffic,  255,  268. 


INDEX.  683 


Ordinances  to  assess  for  sidewalks,  264. 
to  require  safety  appliances,  271. 
to  guard  against  fire,  273. 
to  regulate  railroads  in  streets,  277. 
curfew  ordinance,  267. 
to  establish  fire  limits,  280. 
to  require  gates  at  crossings,  286. 
to  regulate  signs  and  billboards,  289. 

emission  of  smoke,  295. 
to  compel  clearing  of  sidewalk,  298. 

of  street  bj'^  railway,  304. 
to  compel  transfers  on  street  railways,  427. 


P. 

Park,  negligence  in  maintaining,  628. 

power  to  erect  dwelling-iiouse  in,  424. 
to  lease  restaurant  in,  457. 
to  sell,  446. 
Park  Commissioners,  whether  a  municipal  corporation,  8. 
Pension  fund,  power  to  contribute  to,  333. 
Pit,  liability  of  city  for  maintaining,  639. 
Poles,  power  to  exact  license  fee  for,  in  street,  311,  312,  433. 
Police,  control  of,  by  state,  100,  101. 
Police  Commissioner,  rules  of,  205. 
Police  officer,  liability  for  act  of,  580. 
Powers  of  a  municipal  corporation,  240  et  seq. 

to  build  market,  240. 

to  expend  money  on  celebration,  245. 

to  maintain  bridge,  248. 

to  call  special  meetings,  249. 

to  pass  ordinances,  252  et  seq. 

police,  277  et  seq. 

to  create  fire  limits,  280. 

to  require  inspection  of  milk,  282. 
safety  gates,  286. 

to  regulate  signs  and  billboards,  289. 
emission  of  smoke,  295. 

to  tax,  298  et  seq. 

to  compel  clearing  of  sidewalk,  298. 

to  grant  franchise  on  condition,  300. 

to  exact  payment  for  franchise,  300. 

to  compel  clearing  of  street  by  railroad,  304. 

to  exact  license  fee  for  poles  in  streets,  311,  312,  433. 

to  expend  money.     See  Money. 

to  reimburse  officers,  326,  330,  342,  347,  348. 

to  pension  officers,  333. 

to  send  officers  to  other  cities,  331,  336,  338. 

to  advertise,  340. 

to  investigate  pubUc  questions,  350. 

to  borrow  money,  363,  368. 

to  contract.     See  Contract. 

to  authorize  track  over  sidewalk,  428. 

to  sell  park  land,  443. 

waterworks,  445,  451. 
water  power,  462. 


684  INDEX. 

Powers  of  a  municipal  corporation  to  lease  gas  works,  453. 

restaurant  in  park,  457. 

opera  house,  467. 
Property,  effect  of  division  of  territory  upon,  31-38. 
power  to  acquire,  in  trust,  408. 

to  buy  land  outside  city  limits,  413. 

to  erect  public  buildings,  417. 

dwellings  for  employees,  424. 

to  enclose  athletic  field,  438,  440. 

to  sell,  443,  445,  451. 

to  lease,  453,  457,  467. 

to  dispose  of  surplus,  462. 
Public  buildings,  power  to  erect,  417. 

Public  works,  liabiUty  for  negUgence  in  constructing,  633,  635. 
board  of,  203. 


R. 

Railroad,  compulsory  subscription  for,  120. 
Railroads  in  streets,  power  to  regulate,  271,  277. 

to  require  gates  at  crossings,  286. 

cleaning  of  highway,  304. 
Receiver  to  collect  revenue,  673. 
Reconsideration  of  vote,  177. 
Records,  amending,  170. 
Referendum,  149. 
Remedies  against  city,  653  et  seq. 

levy  of  execution  against,  653. 

mandamus  to  compel  levy  of  tax,  657,  659,  662. 

injunction,  667. 

appointment  of  receiver,  673. 
Removal  of  officers,  214. 

hearing  upon,  217. 
Restaurant,  power  to  lease,  in  park,  457. 
Riot,  compulsory  damages  for,  108. 
River,  liabiUty  for  overflow  of,  545. 
Rules  of  city  council,  175,  178,  195. 

of  poUce  commissioner,  205. 


S. 

School  board,  action  of,  must  be  in  meeting,  207. 

authority  of,  209. 

power  to  contract  for  succeeding  year,  204. 
School  district  is  municipal  corporation,  2. 
Schoolhouse,  liability  for  defect  in,  534. 
Schools,  compulsory  support  of,  105. 

power  to  require  vaccination  as  condition  of  entrance  to,  278- 
Sewer,  defect  in  plan  of,  546,  548. 

in  maintenance  of,  611. 
Sidewalk,  clearing  of,  required,  298. 

power  to  authorize  track  over,  428. 

power  to  assess  for,  264. 
Signs,  power  to  regulate,  289. 
Smoke,  power  to  regulate  emission  of,  295. 


INDEX.  685 


Street,  liability  for  change  of  grade  of,  550,  552. 
for  defect  in,  601,  603. 
power  to  compel  railway  to  keep  clear,  304. 
to  exact  license  fee  for  poles  in,  311,  312. 
power  to  acquire  land  to  furnish  stone  for,  413. 
power  to  regulate  traffic  on,  255,  268. 
railroads  in,  277. 


T. 

Taxes,  levy  of,  compelled  by  mandamus,  657,  659,  662. 
Tort,  liability  for,  530  et  seq. 
defect  of  bridge,  530. 
embankment,  532. 
defect  in  public  buildings,  534. 
negligence  of  officer,  540,  542,  545. 
enforcement  of  ordinance,  542. 
overflow  of  river,  545. 

defect  in  sewer  or  in  plan  of  sewers,  546,  548. 
change  of  grade  of  street,  550,  552. 
injury  to  real  estate,  555,  557. 
occupation  of  land,  558. 
vltra  vires  acts,  561. 
communication  of  disease,  564. 
in  admiralty,  566. 

negligence  in  enforcement  of  ordinances,  569. 
defect  in  public  building,  571. 
false  arrest,  580. 

negligence  of  health  officers,  582. 
failure  to  pass  ordinance,  583. 
negligence  in  vaccinating,  585. 

of  employee  of  health  departments,  587. 

of  employee  cleaning  streets,  591. 

of  employee  in  public  asylum,  592. 
permitting  exhibition  of  fireworks,  595. 
defect  in  highway,  601,  603. 

in  sewer,  611. 

in  fire  hydrants,  618,  622. 
negligence  in  extinguishing  fire,  619,  620. 

in  maintaining  park,  628. 
defect  in  city  hall,  632. 

in  constructing  works,  633,  635. 

in  dangerous  land,  639. 
for  cutting  trees  in  cemetery,  641. 
defect  in  leased  building,  642. 
negligence  in  operating  commercial  enterprise,  643. 
defect  in  city  farm,  647. 
Tracks,  power  to  authorize,  428. 
Transfers,  power  to  compel,  427. 
Trust,  acceptance  of  property  in,  408. 


U. 

Ultra  vires  act,  liability  for,  561. 


686  INDEX. 


Vaccination,  power  to  require,  278. 
liability  for  negligence  in,  585. 
Vote,  reconsideration  of,  177. 


W. 

Wages,  power  of  state  to  regulate,  135. 

Water  Commissioners,  Board  of,  whether  a  municipal  corporation,  6. 

power  of  legislature  over,  82. 
Water-power,  surplus,  power  to  sell,  462. 
Waterworks,  power  to  sell,  445,  451. 


_  I^W  UBUARY  ^  ^ 

UMWRSTTY  Of  CA Xif ORNIA  %^ 

if'*f^  ANGELES  ^ 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


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